This week’s headlines about migrants seeking to cross the channel served as a reminder – not that it should ever be forgotten, still less forgiven – of the way that the more general migrant ‘crisis’ (in scare quotes for a reason) of 2015 was weaponised in the 2016 Referendum campaign. Of course, as with their economic claims, Brexiters have now deemed it politically incorrect to even suggest that migration and immigration were central to their case (which, we are now expected to believe, was all about Edmund Burke’s theories of sovereignty).
The official Vote Leave campaign confined itself, relatively speaking, to dog whistles, most notoriously in the implications of the, in any case untrue, claim that ‘Turkey is joining the EU’, and the linkage of this to Syria and Iraq. Nigel Farage and UKIP, by contrast, were happy to blow the hunting horn, as with their hideous ‘Breaking Point’ poster. Indeed, cynics might say that the two campaigns were not so unconnected, and that Farage acted as an enabler for the official campaign to keep itself relatively clean whilst reaping the rewards of that which they ostensibly disavowed.
At all events, between them the two campaigns exploited the refugees both directly and also by the wholly dishonest conflation of freedom of movement, immigration in general, refugees and asylum seekers (for more detail on this aspect of the Referendum, see this article by Dr Amanda Garrett of Georgetown University).
The current bogus panic about cross-channel refugees also has Farage lurking sweatily in the background as for some months now, like a censorious suburban curtain-twitcher newly equipped with a bus pass, he has been hanging around beaches and hotels (£) in his grubby mac trying to whip up talk of an “invasion” – talk which then all too predictably crossed over into the mainstream. Farage - who let’s not forget no longer holds elected office and heads a basically defunct ‘party’ - may have done more to pollute British politics than any other politician of his generation but, as ever, the government are more than happy to splash around in his fetid cesspit.
Less control, not more
In this way, there are direct parallels between Brexit and this current “artificial emergency”, and polling evidence shows a clear relationship between views about the two, but with a new twist. For what this latest episode brings into focus is that Brexit, far from allowing Britain to take back control, is likely to make the situation much more complicated. This is because, as Professor Steve Peers explained in an excellent blog this week, within the tangled maze of international law and conventions about refugees and asylum seekers, the EU’s Dublin rules provide part of the framework to address this issue.
To very briefly summarise (as so often, it’s a complex issue, so do please use the links to get a fuller picture), Peers explains that the oft-quoted idea that those seeking asylum are obliged to do so in the first safe country they reach is bogus (and there are often good reasons why they do not). However, amongst its participants, the Dublin rules do often assign responsibility to that country, even if asylum has been sought elsewhere in the EU. In practice, this often provides the basis on which some of those relatively few asylum seekers who reach the UK are returned to France and elsewhere which, apparently, is what Brexiters want (the idea of any obligation either to the people themselves or to other countries not being a prominent feature of their moral universe, and indeed, reading posts on social media, the idea of refugees being people at all seems to be beyond some of them).
Yet that and other EU provisions will be lost to the UK at the end of the transition period. It may be that the UK and the EU agree something similar (or, even, better) but it is by no means clear that this is in prospect – or even that it has been the subject of substantive discussion - and Peers concludes trenchantly that as regards asylum seekers “the effect of Brexit may be ultimately to reduce UK control of migration, not increase it”. Equally, the idea that Brexit will miraculously free the UK from the Dublin rules to do more advantageous bi-lateral deals on refugee return with individual EU member states “seems extremely implausible” according to Professor Jonathan Portes. But in the tautological theology of Brexit, any EU rules are seen as suspect so it becomes an article of faith that leaving them will be ‘liberating’.
How (not) to make friends and influence people
It does not follow, as is being widely said on social media, that Home Secretary Priti Patel talking about the need for co-operation with France is in and of itself a further indication of the folly of Brexit. After all, there have been bi-lateral agreements with France about refugees even whilst the UK was an EU member. But it does serve as a reminder that international problems entail international co-operation in general and, in this case, constructive relations with France in particular, which have hardly been aided by Brexiter rhetoric, such as Boris Johnson’s ill-judged and offensive remarks about ‘World War Two punishment beatings'.
Nor is the cause of co-operation well-served by the current headlines about Patel issuing ‘ultimatums’ to France, or about the ‘outrage’ of France seeking financial contributions to its control of the border. As with the Brexit negotiations, antagonistic messages that may be designed by the British media and politicians solely for domestic consumption are seen and heard abroad, and inevitably sour international relations. Not just France but Germany, Ireland and Spain have all been subjected to repeated insults during the Brexit process. It would be foolish to think that this has no effect, or that it can make co-operation with such countries (over refugees or anything else) anything other than more difficult.
Post-Brexit, Britain risks becoming friendless as a stark new YouGov survey shows and, even on the Brexiters’ own ‘Global Britain’ reckoning, will need to become adept at neat diplomatic footwork in order to avoid isolation. But such footwork is alien and, even, anathema to this Brexit government, which would prefer to blunder bullishly around the diplomatic china shop so as to pander to its core vote – and its own antediluvian party and parliamentary membership - than do anything that might actually be construed as being in the national interest. It’s yet another example of this Vote Leave administration permanently re-fighting the leave campaign rather than governing. The effects on Britain’s well-being, let alone its international reputation (£), are of course irrelevant to these Brexit ‘patriots’.
An article this week by a senior former diplomat, David Hannay, underscored just how damaging this approach is proving to be for the trade negotiations with the EU. The British government, he argues, is acting in a way which is “unprincipled” and is destroying trust. This is principally because of the way that the Political Declaration (PD) has effectively been treated by the UK as totally irrelevant whereas it had been signed with the EU on the understanding that it constituted a shared framework (I would add that this has come on top of repeated ways during the Article 50 negotiations that the UK behaved in an untrustworthy manner, principally when the phase 1 agreement was disowned). This, Hannay, argues, is damaging not just to the prospects of a trade deal but to Britain’s more general need to build friendships abroad including with European countries.
No one likes us, we don’t care
If the government is already reckless of such considerations, the Brexit Ultras are as always urging an even more irresponsible and dangerous course with their now growing clamour against not only the PD but the Withdrawal Agreement (WA) itself. This of course would be even more serious: in rejecting the PD, Britain is breaking its word but if it rejects the WA it breaks an international treaty.
I wrote about this last week, with links back to how it has been in prospect ever since the 2019 Election, despite the ERG voting for the agreement. This week has seen yet another salvo in the Express from Iain Duncan Smith against the WA (which was nicely taken down by, again, Steve Peers), as well as a report in the Sunday Telegraph (£) which headlined the bizarre suggestion from an unnamed source that the WA was ‘not worth the paper it was written on’. That accusation is usually made of an agreement the other party can readily ignore, and so is a strange thing to say of one which you propose illegally to disown.
But that is hardly the strangest feature. Whereas last week Duncan Smith was talking about things “buried in the fine print” of the WA now – perhaps stung by the many criticisms of him for having apparently voted for something he didn’t understand – he loftily declares (in the Telegraph piece) that “everyone knew this stuff before” but voted for it so as to be out of the EU and able negotiate as a “sovereign nation” (inevitably, it has not sunk in that had Britain not been a sovereign nation it couldn’t have signed the WA anyway). Similarly, in his own Express piece he writes of his “surprise” that his comments of the previous week were a “revelation” (even though he had presented them as just that) and claims that the WA “was always a work in progress” rather than, in fact, an international treaty. He clearly doesn’t realise, or perhaps just does not care, that this is an even more indefensible position since it implies that he and his ERG cronies acted with deliberate bad faith rather than simply incompetence.
I won’t add to what I have written before about this latest piece of Brexiter duplicity and irresponsibility, with its potential to take Britain to international pariahdom. As noted last week, it will be repeated endlessly in the coming months so there will be plenty of opportunities to analyse it then. In any case, repeatedly pointing to its flaws is largely irrelevant: its purpose, probably already achieved, is to persuade the Brexiters’ base that the WA can and should be repudiated.
Even on the most charitable interpretation that it is designed as a signal to Boris Johnson not to make ‘concessions’ in the EU trade negotiations it will already have done further damage to Britain’s reputation – again, the British press is read in other countries. But, increasingly, the Brexit Ultras resemble those Millwall fans who used to chant “no one likes us, we don’t care”, although possibly even this credits them with a greater degree of self-awareness than is warranted by the evidence.
The art of the deal?
Meanwhile, trade negotiations with non-EU countries continue – sort of. A shouty headline in the Express (interestingly now changed to something much more anodyne, but see the original here) reported the “Brexit DISASTER” that talks with the US had been delayed, with the growing possibility that they would end up being held under a Biden presidency if Trump loses the November elections. This wasn’t actually news to anyone following the news (£). But its prominent discussion in such a rabidly pro-Brexit ‘newspaper’ has its own significance in the gradual falsification of all the promises made by Brexiters to its readers.
The idea of a UK-US Free Trade Agreement has always been held up as the iconic economic prize of Brexit (even though its actual economic effect would be very small). Moreover, it has been an article of faith to Brexiters that Trump would facilitate a good, quick deal in contrast to Obama’s much-resented ‘back of the queue’ warning during the Referendum campaign. That, too, was highly unrealistic given Trump’s capricious nature, not to mention his avowed ‘America First’ position (though, by the same token, the substance of talks with a Biden administration wouldn’t necessarily be any different).
So as early as July 2017 The Lord Jones of Birmingham, better known as Digby Jones, the fanatically pro-Brexit former head of the CBI, with all the august dignity we expect from a Peer of the Realm bated “remoaners” that a trade deal with the US was “in the bag”. More seriously, in September 2019 Johnson and Trump were reported to have agreed that a deal would be done “in lightning quick time by July [2020]”, explicitly to precede the Presidential elections (albeit that at that time Trump looked likely to win).
It is in that context of over-blown promises that imparting the news to Express readers that they won’t be kept is important (I assume the subsequent significant change to the headline was because they were infuriated by the original - or someone was). And it can hardly be blamed on coronavirus given that this is not seen as an adequate reason to extend talks with the EU. Nor, given the previous emphasis put on completing a deal this summer, can it be seen as anything other than sophistry to now claim, as Liz Truss did at a House of Lords Committee last month, that setting a target date is being avoided to deny US negotiators the benefit of time pressure.
But the UK-US negotiations have another role within Brexiter mythology. According to former Brexit Secretary David Davis – the man of whom it can fairly be said that he gets everything about Brexit wrong – they would provide leverage in the talks with the EU. Shanker Singham, the Brexiters’ favourite trade guru, agreed that the London-Brussels -Washington “game theory” triangle would put pressure on the EU. It was a highly dubious proposition, which has shown no signs whatsoever of coming true but, in any case, it is now dead in the water since negotiations with the EU – which resume next week - must finish by (in fact before) the end of the year.
Crackers
On the subject of doing deals, the other Brexit story of (passing) interest this week is the supposedly soon to be completed trade re-negotiation with Japan. This is reported to be snagged on last-minute differences over market access for Britain’s Stilton cheesemakers. Trade negotiation experts have explained that such hold ups over apparent trivialities are more the norm than the exception and no doubt they are right.
At the same time, it is hard to resist the thought that this particular row has a special piquancy as it will be Britain’s first post-Brexit trade deal and the government desires to demonstrate that it can achieve more favourable terms for British interests than those of the EU-Japan deal. And, moreover, to do so in relation to an iconic British product.
If successful, it will be more headline fodder for the core voters but – as with the entire ‘sovereignty’ schtick - will in any substantive sense be meaningless. For, economically, it is only of symbolic value (British sales of blue cheese to Japan last year totalled just £102,000) but, then, as with the US talks, the whole point about an independent trade policy is not the ‘trade’ part but the word ‘independent’. Still, like the issue of fisheries, which it closely resembles in that respect, it is at least a rich source of cheesy puns.
My modest contribution is to point out that the whole thing is crackers, and half-baked crackers at that.
I don’t just mean the Stilton story.
Showing posts with label Steve Peers. Show all posts
Showing posts with label Steve Peers. Show all posts
Friday, 14 August 2020
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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