Bad vibes

In my last post I briefly mentioned that the government, and Rachel Reeves in particular, have begun to speak increasingly openly about the damage Brexit is continuing to do to the British economy. This, I said, was striking because the higher the costs are admitted to be, the more they mandate a stronger response than that of the reset. The converse also applies, of course. Such admissions, if unaccompanied by any stronger response, serve to underline the inadequacy of the reset.

This is the hook upon which the government’s approach to Brexit is currently caught, and what underlies it is the continuing failure of the British polity as a whole to be honest about Brexit and much else besides. That, and the reasons for it, have been amply illustrated over the last fortnight.

A “Brexit row”?

During that period, it has been reported (£) that the government is preparing legislation to enable the UK to align with all of the EU regulations needed to enact the long-trailed, though still not finalized, UK-EU Sanitary and Phytosanitary (SPS) or ‘veterinary’ agreement. Moreover, this legislation is expected to contain provision to enable similar moves in other sectors in the future, subject only to statutory instruments meaning, in effect, Ministerial decree.

The idea behind the latter provision, apparently, is that it could pave the way for ‘sector-by-sector’ deals with the EU. In the report of these plans, it is also suggested that at least some within the Labour Party “are hoping that the bill will provoke a Brexit row with the Conservatives and Reform UK, reminding voters that their opponents supported Leave in the EU referendum”.

In just this one small news item there is quite a lot to unpick. One thing to say is that it isn’t surprising, in that it was inherent in what was known about the desire for an SPS deal that there would be such legislation. What is perhaps more interesting is the idea that Labour might now be willing to have “a Brexit row” with Conservatives and Reform, something they have fought shy of in the past.

Evidently, this is a continuation of the shift to greater openness about the damage of Brexit. The political reasons for that shift are fairly obvious and have recently been set out in detail by the polling expert Professor Sir John Curtice: in brief, Labour’s (belated) realization that its approach to Brexit is one of the things causing the collapse of its core vote, as happened in the Gorton & Denton by-election.

As this legislation proceeds, Labour will get their row in that, inevitably, indeed already, the Brexiters are screaming ‘betrayal’. However, what that row will really show is that, even now, the ways in which Brexit is discussed are almost entirely dishonest or deluded, or both.

On the Tory side (and that of the Brexiters more generally) there is the dishonesty of the fact that de facto alignment with almost all EU regulations is unavoidable, except at huge economic cost, which is exactly what the Conservatives came to accept when in office. Nor can they reasonably complain about the lack of democratic oversight associated with the use of statutory instruments, since it was they who made such extensive use of so-called ‘Henry VIII’ powers throughout the Brexit process. Indeed, it would be reasonable to say that one of the many failed promises of Brexit was that it would return decision-making to parliament.

On the Labour side, there is the dishonesty, shared at various times by various Conservative Brexiters, that whole swathes of the British economy could de facto remain ‘within’ the single market on a sector-by-sector basis. This is effectively a reprise of the “ambitious managed divergence” model floated by Theresa May’s government in February 2018 (and discussed on this blog at that time) although it has gone under different names at different times.

If, as is reported, Keir Starmer believes that the reset process so far has shown that EU objections to ‘cherry-picking’ have disappeared, then that is a profound misreading. For reasons I discussed last year, things like a possible deal on SPS (or on the internal electricity market or Erasmus+) should not be regarded as cherry-picking. I meant that as a rebuke to those who mistakenly use that term to dismiss as doomed any and every attempt to supplement the existing Trade and Cooperation Agreement (TCA). But it would be equally mistaken if Starmer believes that the EU’s willingness to make some adjustments, when they are in its interests, means that any and every attempt to supplement the TCA is viable.

Brexit pragmatism?

Perhaps the most striking dishonesty is what underpins Labour’s approach, namely the claim, articulated most explicitly by Europe Minister Nick Thomas-Symonds (£), that what the government is delivering with the reset is “what a proper Brexit looks like”. By this he means that the UK is making “sovereign’ choices” guided by “ruthless pragmatism”. In its way, this is a clever debating society argument, in that it takes the Brexiters’ core demand, that what matters is not this-or-that regulation or law but that regulations and laws are decided by the UK, and uses it against them. This is actually exactly the same structure of argument that ‘liberal Brexiters’ use when they say that what Brexit means for immigration is not necessarily to reduce it but to set it at a level determined by a sovereign parliament.

However, the Thomas-Symonds line is self-defeating as a defence of Labour’s reset policy, precisely because that policy is so inadequate a response to what his government now admits to be the costs of Brexit. For example, to be more specific, on ‘ruthlessly pragmatic’ grounds it is impossible to defend the value of the UK having an independent trade policy.

That has been illustrated in two ways in the last fortnight by the announcement of the EU-Australia Free Trade Agreement. On the one hand, that agreement shows that, as a collective, the EU was able to get a better deal, especially for its farmers, than the UK got in its own deal with Australia. On the other hand, and given also the recent EU-India deal, it means that the only countries with which Brexit Britain currently has trade agreements that it would not have as an EU member are Malaysia and Brunei (via CPTPP). Meanwhile, were the UK still in the EU it would be part of its trade agreement with Mercosur bloc.

Of course there are legitimate arguments about how important trade agreements really are to the economy, and also about the desirability of their effects on domestic industries, supply-chain resilience and so on. But those are not the government’s arguments. This being so, then it could get more, and better, trade agreements if it successfully pursued a customs union agreement with the EU, which would also improve terms of trade with the EU itself. So, on the basis of ‘ruthless pragmatism’, why not make the ‘sovereign choice’ to seek such an agreement with the EU?

From this follows the more fundamental point, which lies right at the heart of the fallacy of Brexit and which was most strikingly articulated in the very first Brexit White Paper in February 2017. As I discussed at the time, this contained the remarkable sentence: “Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.” Thus even as Britain embarked on the process of leaving it did so knowing that the central plank of the leave argument – that the UK had lost its sovereignty – was completely untrue. It was just ‘a feeling’. And the point still holds, so, on the Thomas-Symonds argument for the reset, there is an even stronger argument for seeking to join the EU, as a sovereign choice made on pragmatic grounds.

A path forward?

In short, the more the government now acknowledges the costs of Brexit, and the more overtly it justifies its reset in terms of the pragmatic response of a sovereign nation to those costs, the more it undermines both the philosophical and economic case for Brexit – and yet at the same time describes its position as delivering ‘proper Brexit’. Similarly, although this week Starmer gave his strongest statement yet that the international ‘volatility’ engendered by Trump’s regime, as well as the economic damage of Brexit, justifies an “ambitious” partnership with the EU, doing so only serves to highlight the constraints he has placed on those ambitions.

It presumably goes without saying that, going back to the electoral politics, this means that if it is true that the Labour Party is now willing to have a “row” about the false promises of Brexit it is unlikely to reap much, if any, reward from anti-Brexit voters. For it remains wedded to a policy which is not just lily-livered but self-contradictory

That doesn’t mean that it is realistic for Labour to adopt a ‘join’ (or ‘rejoin’) position, let alone likely that it will do so. But in my view, as I’ve argued before, it should mean adopting the position that seeking to join would be desirable but is not feasible until such time as all the other main parties either accept this or, at least, undertake not to reverse such a process were it begun. This would at least bring some clarity to the “row”, forcing Tory and Reform Brexiters to discuss and defend Brexit, as they nowadays seem unwilling to do.

With that clarity might come some honesty, in the sense of the recognition that Brexit has not had majority support for a very long time but also by the recognition that, for so long as there is a distinct possibility that an incoming government would backtrack on it, any process towards joining is impossible (most obviously for the EU). That in turn could be part of a more general recognition, which has been largely absent throughout the Brexit process, that the future of UK-EU relations is not just about what Britain wants but what the EU and its member states want.

Taking all these things together might be the beginning of a recognition that, in the concluding words of an excellent analysis this week by Kirsty Hughes on her ScotEU Substack, “the path back needs strategic, honest, courageous political leaders and renewed, inclusive political debate.”

Deeply embedded dishonesty

However, it is difficult to be optimistic that any of this is about to happen, not least because although dishonesty certainly didn’t begin with Brexit, Brexit has rammed dishonesty so deeply into the body politic that it seems impossible to dislodge. A case in point is another aspect of the fallout from the Gorton & Denton by-election, namely the allegations of ‘family voting’ and voter coercion (with the implication that this had been amongst, specifically, Muslim voters). Last weekend, in what seemed to be an unusually detailed statement, Greater Manchester Police (GMP) announced that their investigation had found “no evidence” that this had occurred.

As I noted in my blog post at the time of the by-election, operators like Nigel Farage trade on the fact that such allegations stick in the public mind whereas even if subsequent investigations show them to be false that is barely noticed. No doubt that is true in this case, not least because whereas the original allegations were given very prominent coverage both in the right-wing press and by broadcasters including the BBC, the GMP’s statement was given far less attention.

But it’s actually worse than that, because the statement was immediately denounced by Farage as an “Establishment whitewash” and “another brushed-under-the-carpet report from the usual suspects”. Matt Goodwin, the defeated Reform candidate, also called it a “whitewash” and insisted that “sectarianism is taking over our democracy”, later strongly implying that he didn’t believe the police’s findings.

I’ve noted many times before that this kind of ‘non-falsifiable’ illogic permeated the entirety of the Brexit process and, by extension, now characterises Brexitism. Thus, in this case, had the police found evidence of family voting then, of course, it would be taken as proof that it had occurred. But, when the police found no evidence, this is taken as proof that it not only occurred but is being ‘covered up’.

What is far worse than that (or, rather, is enabled by it, showing why such illogic is dangerous and not just stupid) is how utterly corrosive and corrupting it is: as with depicting judges as ‘enemies of the people’ and civil servants as ‘saboteurs’, the Brexitists are determined to destroy every last vestige of trust in public institutions. Perhaps worst of all is that, whilst attacking the police investigation assists this agenda, it is hard to escape the conclusion that Farage et al. were secretly hoping that wrongdoing had taken place, yielding what would been a prominently reported and easily exploitable scandal.

The travails of MattGPT

Matt Goodwin has also been in the news for another reason. I referred in my previous post to his new book, Suicide of a Nation: Immigration, Islam, Identity, which has since been published and widely criticised, including in a debate on GB News during which Goodwin became visibly angry, even at one stage rounding on his ideological soul-mate Miriam Cates, who was chairing.

Indeed, tellingly, even those sympathetic to what might charitably be called Goodwin’s thesis were unimpressed, with one describing the book as the work of a “slopagandist”, another entitling his review “suicide of an author’s credibility”, and a third opining that the nickname ‘MattGPT’ would follow the former academic “to his grave”. By comparison, those less sympathetic were rather gentle in simply calling it “trash”. In fairness, it should be said that Goodwin had his defenders, but fairness also requires saying that the most prominent of these was the swivel-eyed Telegraph columnist Allison Pearson (£).

As the ‘MattGPT’ tag implies, much of the criticism has focussed on what appear to be bogus quotations generated by AI-hallucination (£), to which Goodwin’s rather piquant defence in the debate was that he had put the entire text through an AI checker which had exonerated it from the accusation of the book being AI-generated (though that had not, in fact, been the accusation). But perhaps the more damning criticism is of the misinterpretation of statistics about schoolchildren who have English as an Additional Language (EAL). This sounds rather geeky but is actually important, both in itself and because it creates the suspicion that the way Goodwin represented the EAL statistics was not the only way in which data had been manipulated in pursuit of the book’s claims.

In official statistics, “a pupil is recorded to have English as an additional language if they are exposed to a language at home that is known or believed to be other than English. This measure is not a measure of English language proficiency or a good proxy for recent immigration” (p.4 of link). On this basis, between 20% and 25% of pupils have EAL. From this, Goodwin seems to infer that they have either no, or at least impaired or deficient, proficiency in English.

However, according to Steve Strand, Professor of Education at Oxford University, Goodwin “is totally misunderstanding what this measure of EAL is. He keeps talking about English not being young people’s first language, but you could be recorded as EAL and still be totally fluent in English. So he’s not understanding the question that underlies the data.” Strand’s argument is borne out by the fact that, according to Department for Education’s 2020 report, in Spring 2018 some 61% of EAL schoolchildren were either fluent or competent in English [1].

Moreover, Goodwin claims that in schools in areas where EAL rates are high “English is no longer the main language” which carries at least the implication that some other language is, whereas, of course, in such situations English is, so to speak, the lingua franca. In that sense, what the EAL statistics actually show is exactly what would be expected from assimilating immigrants. At home, their children are exposed to and use another language, but in the public sphere, at school (and subsequently, no doubt, at work), they are additionally exposed to and use English. But in Goodwin’s telling it is sinister evidence that a process of ‘cultural erasure’ is underway.

Plastic patriots become counterfeit Christians

That same proposition is evident in the latest seasonal panic that Easter eggs are no longer called by that name, every aspect of which has been discredited by Emma Monks on her Monk Debunks Substack. But whilst, like the similar panics that Christmas has been replaced by ‘Winterval’, this is tediously familiar, it has a new salience because of the notable recent shift in the rhetoric of populist leaders towards stressing Britain’s ‘Christian culture’.

Admittedly, theologians might question the sacramental status of the chocolate Easter Egg, just as they might wonder if Tommy Robinson’s conversion is any more genuine than his name, be puzzled by Reform MP Robert Jenrick’s reference to “Psalm Sunday” (sic), and ponder the sacerdotal credentials of ‘Bishop’ Ceirion Dewar of Ceirion H. Dewar Ministries Ltd. But there is no doubt that there has been a profound change in the language being used by the populist right.

Nor is it just matter of language. It is also evident in what is emerging as Reform’s “family friendly” policy agenda – an agenda set out with great clarity by Lisa Burton in Yorkshire Bylines – with all it implies for abortion, contraception, and reproductive rights generally. One reason for these developments is the influence of US populists on their UK counterparts. It may also be relevant that Paul Marshall, so pivotal to British populists especially through his co-ownership of GB News, moves in those circles and is himself an evangelical Christian with a reportedly “spiritual mission” to fight ‘progressivism’ (which appears actually to mean post-Enlightenment rationality).

There is an obvious connection between these three stories – the discredited allegations of ‘family voting’, Goodwin’s discredited account of EAL statistics, and the discredited stories about the cancellation of Easter: they all circle around the same theme of ‘cultural erasure’ at the hands of Muslims, aided and abetted by the liberal ‘woke’ elite. And it is a message pouring in torrents across social media, and much of the print and broadcast media, every day, in the coverage of hundreds of different stories.

Another recent example is the spate of images of schoolchildren exercising on yoga mats carrying the false claim that they are being forced to participate in Muslim prayers. Yet another is the frenzied reaction to a BBC discussion about whether there are too many ‘dog-friendly’ spaces, representing it as a woke attempt to impose Muslim sensibilities upon the nation (it was actually about people who are scared of dogs). These, and innumerable other examples, are small-scale in themselves but it is that which makes them potent as tessellations of the same basic message.

But there is another connection between all these stories, and it is one which links directly back to Brexit.

Vibe politics

As these various stories have unfolded over the last fortnight, I have been looking at the social media responses not just from the big names of the culture wars but from the rank-and-file posters. What that reveals is not so much that the rebuttals of them are ignored as that they are discounted. That is, it may be accepted that such-and-such a detail is wrong, but, nevertheless, ‘we all know’ that the bigger truth holds good. This is the significance of the cumulative effect of similar stories. It creates a politics of ‘vibes’ just as with Brexit the effect of years of media stories made it “feel” as if we had lost sovereignty.

Of course, vibe politics is nothing new. Think of Blair’s ‘Cool Britannia’. Think, for that matter, of the 1950s Macmillanite message that we “have never had it so good”. What is distinctive about populism is that it trades on ‘feel-bad’ rather than ‘feel-good’ vibes: on grievance, resentment, and fear. That, too, is evident in the stories I have just discussed and is absolutely central to the claims of ‘cultural erasure’.

I haven’t talked about the war in this post, since its deepening spiral only serves to re-enforce points which I’ve previously made. But Nigel Farage has been speaking about the war. Not, needless to say, the war the US has unleashed in the Middle East, about which, after his original Trump-crawl, he has been remarkably coy. No, as usual it was the Second World War or, more particularly, a single moment within it.

Thus, launching Reform’s London local government election campaign in Croydon, under its current and perhaps ill-advised slogan of ‘Reform will fix it’, he spluttered that: “This is, this is, this is 1940 all over again. The very existence of our nation, its culture, its identity is under threat.” It is the same message of a ‘nation in existential peril’ that Goodwin peddles; the same message as that of the ‘family voting’ accusations; the same message as is contained in the stories about Easter eggs, yoga mats, dogs, and all the rest of it.  

Farage is right, though, to say that history is repeating itself. Not in the sense that it is 1940 all over again, but because it is 2015 all over again. Then, too, he was bloviating about 1940 but at that time it was to tell us it was the EU referendum which was “our modern day Battle of Britain”. Once again, Brexit has morphed into Brexitism.

It’s this repetition, this stuckness in the same myths and vibe-based messages, and the fact that, like it or not, they continue to resonate for perhaps a quarter or even a third of the adult population, and to be amplified by a phalanx of media commentors, which makes British politics so irredeemably dishonest, and the possibility of honesty about Brexit, specifically, so elusive.

With that happy thought I leave you to enjoy, to use the term cruelly stolen when the nasty Normans erased our culture and language, Ēostre.

 

Note

[1] The report notes that it is not possible to provide comparable figures for children for whom English is their first/ sole language, but it should not be assumed that all such children are fluent or competent.

This White Paper should be put out of its misery

The new Brexit White Paper has now been published, filling out the three page summary of the Chequers proposal and, in doing so, has both confirmed and amplified the obvious flaws of that proposal, discussed in a previous post.

As commentators including Chris Giles, Economics Editor of the Financial Times and Piet Eeckhout, Professor of EU Law at University College London quickly pointed out, the White Paper is cakeism or cherry-picking writ large. Or, as Ian Dunt more colourfully put it in a detailed and damning assessment, “they have a cake, they have eaten it, some of it is still magically on the plate, and the rest is being vomited up on the floor”. I don’t think he meant it in a good way, either.

The central problems, as pre-figured by Chequers, are the idea of separating the single market in goods from that in services, an ambiguous role for the ECJ, a customs arrangement that is pure hokum, and the rejection of freedom of movement of people. But beneath that there are a myriad of ways, relating to trade and non-trade matters, where the proposal is to continue to participate in EU institutions – for example those relating to aviation safety, medicines and policing – as if Britain were still a member state.

There is even a proposal that – as pointed out by Ed Conway, Economics Editor of Sky News - the EU would re-write its existing and future trade agreements with other countries so as to count UK components as if they were of EU origin. Not so much ‘I’ll have my cake and eat it’ as ‘I’ll have my cake, eat it, and eat yours as well’.

The government is clearly aware that what is being proposed is completely at odds with what being a third country to the EU means, and say as much (p.7). Specifically, the idea is that the agreement “should reflect the UK’s and the EU’s deep history, close ties, and unique starting point”. This I think lies at the absolute heart of the problems of the White Paper and, indeed, the government’s entire approach to Brexit since the Referendum. It is based on the notion that there is a kind of alumnus status which is different both to membership and to non-membership.

It is a fantasy. No such status exists, and the EU have been clear both before and since the vote that it can’t exist. Either Britain wants to leave, or it doesn’t: it can’t both leave and not leave in what some have called ‘Schrodinger’s Brexit’. At the very best, the White Paper is the basis – far too late in the day – to begin a negotiation. Yet some are suggesting that, far from being negotiable, it should all be accepted by the EU because it is as far as the government can go given the domestic political constraints imposed by the Ultras.

But that is to view matters entirely through the prism of Tory party infighting. That’s unrealistic. Although as a continuing member Britain was able to extract numerous special concessions in part because other countries recognized those domestic issues, it has far less traction coming from a departing member. For the EU-27, Britain’s political problems are its own and are recognized only to the extent that the EU will (and are) making polite noises about the proposal rather than rejecting it immediately. But reject it they surely will. And if the response to that is to say that ‘no deal’ would be bad for everyone, consider that it is Britain, not the EU-27, which is drawing up plans to stockpile food, medical supplies and portable generators.

As for that Tory infighting, it is becoming more intense. The Brexit Ultras are back in their comfort zone of protest and victimhood – there is a real spring in their step now that they can drop any pretence of having to take any responsibility for this mess. A few weeks ago they were decrying the Tory ‘rebels’ for having the temerity to seek amendments that would ‘bind the Prime Minister’s hands in the negotiations’. To do so, they fulminated, was to sabotage the will of the people. Now, suddenly, tabling amendments to Brexit legislation is back in fashion with them.

In this context, Labour’s stance becomes more important – and the extent to which Labour MPs back it. For the time being, the official position remains as absurd as the government’s, albeit in a different way. No single market, but something ‘as good as it’, and a customs union. But, listening to Emily Thornberry at this week’s PMQs, it does not seem that Labour even understand the difference between a single market and a customs union anyway. And whilst they are, rightly, talking about the damaging effect of the government’s (lack of a) plan for services they are committed to leaving the single market for goods as well as services. So in some respects, the Labour position on Brexit is now slightly ‘harder’ than the government’s. But it hardly matters, as neither is remotely realistic. What does matter is that the parliamentary arithmetic is now so peculiar that it’s possible that no one Brexit policy would command a majority. That makes a General Election or another Referendum more likely.

As all this grinds on, it’s impossible not to be struck by the sheer pointlessness of it all. What is being gained? An independent trade policy? That is effectively precluded by the White Paper but even if it were not it is no prize at all in economic terms. If it is supposed to be a symbol of sovereignty, it’s illusory (all trade agreements entail diminished sovereignty in the Brexiter sense). Is it sovereignty to exit all the EU agencies just to rejoin them and pay with no say? Was it the will of the people, when these agencies were scarcely mentioned in the Referendum? As for freedom from the ECJ, virtually everyone I talked to before the vote who was concerned with this issue confused the ECJ with the ECHR.

Of course, in the new political correctness of Brexit we are not allowed to suggest that the people did not know what they were voting for, for fear of being labelled elitist by some billionaire, ex-public schoolboy, or tax exile (or all three). But it’s plainly true that they did not, and for that matter that they could not. That is easily demonstrated by the fact that it is only now, over two years after the result, that the government has produced any detailed plan for what leaving means.

It’s no good Brexiters saying that people voted for a different plan: there was no plan at all on offer at the time. And it’s no good them saying that all would be well if their hard Brexit plan had been followed. This is exactly what May’s government has tried to do and, finding it unworkable in practice, it has morphed into the hopeless effort that was produced yesterday. Hopeless because it certainly won’t be accepted by the EU, is already not accepted by the Brexiters, and probably won’t be accepted by Parliament. If it were a horse, then it would be put out of its misery as an act of kindness.

But, then, the same could be said of Brexit itself.

2018: the year that Brexit gets real and the year for getting real about Brexit

It is eighteen months since the EU Referendum and a great deal has happened since then, but most of it has been removed from any sense of reality. For the first six months all we knew was that ‘Brexit means Brexit’, something which lasted until the Lancaster House speech when it was announced that Brexit meant leaving the single market, the customs union and all institutions and agencies that entailed a role for the ECJ; a position then endorsed by the White Paper. It is worth pausing to reflect on this, because that six month delay gives the lie to the claim that the Referendum vote automatically entailed hard Brexit: had it done so, there would have been no such delay in announcing it. We also now know that the Cabinet did not have a formal discussion of the government’s post-Brexit plan until just a couple of weeks ago, and that no detailed impact assessment of it was made. So it would seem that the hard Brexit decision was made by Theresa May and her advisers, rather than by Cabinet, and with little understanding of what its implications would be.

Nevertheless, it was this decision, endorsed by Parliament, which framed the terms of the Article 50 letter and thus fundamentally shaped the way that the phase 1 negotiations occurred. Throughout those negotiations Brexiters continued to spout nonsense – that there would be the ‘row of the summer’ over sequencing; that the EU could ‘go whistle’ for a financial settlement; that ‘no deal’ was a possible or even desirable outcome; that the Irish border issue could be solved by magical, non-existent technologies. All this – along, of course, with the bizarre decision to call an election, and its outcome – was a stupendous waste of time and good will. Thus nine months into the Article 50 period the UK has agreed to pretty much everything the EU set out at the beginning, as was always inevitable unless the government was willing to accept the ‘no deal’ calamity that a breakdown of the talks would mean. Yet even at that point some Brexiters tried to say that the phase 1 agreement wasn’t really binding – only to be immediately disabused of that by the EU.

That, in brief, has been the story so far (for far more detail, see the last 110 posts on this blog!) and it is a woeful one of incompetence, unforced errors and a profound refusal by the government and especially the Brexit Ultras to engage in a serious and realistic way with the policy that they, themselves, wish to pursue. But 2018 is the year that Brexit will get real, and politicians will have to get real about Brexit – real with themselves, real with the public, and real about the EU-27. The crunch date will come, of course, in October 2018 when the final terms of the Article 50 process will need to be agreed for ratification to occur by March 2019 (see Paul Waugh of HuffPost for a great summary of the process).

That is an astonishingly short period of time – really, only nine months - and there is simply no way that it can be achieved if the government continue in the way that they have conducted themselves over the last nine months. But there is another, less obvious, crunch date coming and that is March 2018. That date will mark a year before Brexit actually happens and if by then it is not clear that there will be standstill (i.e. status quo) transition period then really serious disinvestments and relocations will begin to happen because a year is about the minimum timeframe for businesses to make those kind of decisions.

So this is the first and most urgent thing the government need to get real about and they have to do so in the next few weeks. There is going to have to be a standstill transition and if the Ultras don’t like the idea of being a “vassal state” then tough. That’s the consequence of the policy they sold to the British people. The only alternative would be to seek to extend the Article 50 period. It’s highly unlikely, but not impossible, that the EU-27 would agree, of course, but in any case Ultras won’t accept that because they see it as postponing, perhaps forever, Brexit. But the time has come for Mrs May to stop pandering to the foot-stamping Ultras who have so consistently and so conspicuously failed to understand or accept the basic consequences of their own actions. Nothing will satisfy the Ultras because they don’t want to be satisfied and let’s be clear: they represent only a tiny fraction of leave voters, and certainly don’t express ‘the will of the people’.

It is also down to Mrs May, and the government in general, to stop peddling factually nonsensical claims to the British people about what is going to happen now, or what can happen now. Thus, first, what was agreed in phase 1 is not contingent on the outcome of phase 2. It defines the agreed exit terms. Second, phase 2 is not going to yield a future trade deal, it can only (both because of the terms of the Article 50 process, and the timescale) yield a political framework within which that trade deal can be negotiated once Britain has become a third country. There will be no trade deal in March 2019, nor will there be one for a long time after that, and very probably this will mean a significantly longer transition period than is currently envisaged by either the UK or the EU.

Third, whatever the final terms of trade are going to be, May, the government, and Brexiters in general, have got to get real, and quickly, about the incompatible nature of the policies and red lines they currently espouse. That is, there isn’t going to be anything remotely close to the current trade arrangements unless the UK stays in the single market via EFTA/EEA and signs a customs treaty very similar to customs union membership. If the terms are going to be something like CETA then that is going to be a long way from the current situation, especially as regards services, and, in turn is going to be incompatible with having an open border in Ireland. Moreover, as regards non-trade issues then, just as has been accepted for citizens’ rights, participation in all sorts of agencies in areas including aviation, nuclear materials, security and policing will mean accepting some role for the ECJ. There are multiple circles that can't be squared here, and May should give a Prime Ministerial speech or broadcast to explain this to the British people. They deserve, and can for the most part undoubtedly take, some honesty and realism.

There are also some more specific things to get real about. The governmental structure created to handle Brexit doesn’t make sense, split as it is between the Cabinet Office and DExEU, the latter of which has been a mess from the start and which has suffered multiple resignations and staffing problems at both political and administrative levels. This was most sharply revealed by OIly Robbins' move from DExEU to the Cabinet Office. DExEU appears to be dysfunctional and it is not clear that David Davis is on top of his job or, even, what his job is. Whilst rethinking his role and that of his department, it would be a good time for Liam Fox to be told that there is no prospect of him making any substantive progress on trade deals with other countries: it’s not just that no deals can be signed until after the transition period, it’s that no country will discuss the details of such deals until the final terms of Brexit are known. And, finally, all politicians need to get real about the fact that EU leaders and officials do actually have access to the British media: statements made for home consumption can and do adversely affect the negotiations.

So much for the government, but in 2018 the Labour opposition are also going to have to get real and clarify their position. In particular, if they have got any sense, they will clearly and concertedly back staying in the single market as the only way of both ‘honouring the Referendum result’ and avoiding the complexity and damage of Brexit. There are signs that they are inching towards that policy but inching is no longer good enough. Talking about a ‘jobs first Brexit’ or being opposed to a ‘Tory Brexit’ is simply meaningless. The only way to make those slogans meaningful is to support a soft Brexit or no Brexit at all. And that, too, needs to be the position of the Tory backbench ‘rebels’. They will need to do far, far more than they did in backing amendment seven, the one time in 2017 they showed even a fraction of the ruthlessness of their Ultra colleagues.

And, finally, 2018 is also the year when ‘hard remainers’ are going to have to get real. Although it’s conceivable that Brexit might be abandoned completely, this looks less and less likely for the reasons I set out in detail in another post. I don’t like that, and I’d be happy to be proved wrong, but barring a major, sustained change in the opinion polls in the next few months that is how it seems to me. If this is so, it means that the best hope of minimizing the damage now is to seek the kind of soft Brexit which, were it not for the baleful influence of the Brexit Ultras, we might have had and could – just possibly – still get.

In the very first post on the blog, I wrote that it started from the position that the Referendum vote was a national catastrophe, and that is still my view. But even given that – or even for those reading this who do not share this view – what has been striking about all that has happened since the vote is that the botched and incompetent way that the government have approached Brexit has made the worst of a bad job (see this great summary from Jonathan Lis). They have only a few months – really, only a few weeks - left to retrieve the situation and they can only do that by firmly squashing the Ultras. If they do not then any pleasure that we remainers may feel at seeing Brexit crash and burn will be more than offset by seeing the consequences. Because a crash and burn won’t take us back to 22 June 2016 but will propel us into a national evisceration in 2019.

Brexit, data protection, and the myth of 'taking back control'

Yesterday’s statement from the government about the planned new UK Data Protection Bill is the first concrete example of something which has been in prospect ever since the publication of the Brexit White Paper last February. The White Paper made it clear that post-Brexit the UK would seek to maintain a great deal of regulatory harmonization with the EU, with data protection mentioned as one example (paragraphs 8.38 to 8.40).

The Data Protection Bill will be the first fruit of that. In one way, it can be seen as business as usual in that Britain needs to comply with the new EU General Data Protection Regulation (GDPR) which comes into force in May 2018 when, of course, Britain will still be a member of the EU. Yet as yesterday’s announcement made clear, the Bill will “prepare Britain for Brexit” by ensuring data transfer and its associated business can continue smoothly after leaving the EU. The reason this is necessary is that on exit Britain will be a third party nation but such nations need to demonstrate regulatory equivalence with the GDPR in order to trade freely with the EU.

This is a clear illustration of how, whether in the EU or not, the UK in practice needs to comply with EU regulations. There is a strong element of regulatory pull in any situation where a smaller economy sits alongside a much larger economy because proximity also means that – again, whether in or out of the EU – a large proportion of UK trade will be with the EU. This is so regardless of what the trading arrangement turns out to be, although of course the absolute volume of trade will be very much affected by the nature of that arrangement.

As regards the GDPR, since it has been some time in the making, Britain has had the opportunity to shape the new regulations. But once we have left we will become ‘rule takers’ – not only of any further developments in data protection regulation but also across all of the very numerous areas of EU regulation. This is so even if we leave the single market, as the government plans. In fact it is especially true if we leave the single market in that if we stayed in (as an EFTA member) we would have somewhat more scope to influence regulations than as a third party nation (albeit less than as an EU member).

Nor is the issue confined to the formulation of law and regulation. Equally important will be its ongoing interpretation and enforcement which in the EU means the ECJ, of course. But the government have, for unnecessary reasons of pure dogma, made freedom from ECJ jurisdiction a ‘red line’ (something which is causing an endless number of conundrums and disputes, from Euratom to air travel to citizens’ rights). So this creates a new problem. If UK law (in this case on data protection) follows EU law, then what happens as over time the ECJ makes judgments on the interpretation and application of the latter?

This is the force behind today’s call from Lord Neuberger, the President of Britain’s Supreme Court, for guidance from the government as to how to treat ECJ rulings after Brexit. Steve Peers, on his EU Law Blog, pointed out that the White Paper implied that EU case law would continue to be relevant to British courts post-Brexit in the same way as at the moment, but that what this meant was unclear – as it remains. In reality it is impossible to see how the UK could effectively maintain compatibility with EU regulation in the way envisaged by, in this case, the data protection legislation if over time its interpretation and application diverged by virtue of incompatible decisions in the EU and UK courts (this is one of the underlying issues I drew attention to in my recent post on the Brexiter fantasy that current regulatory harmonization makes a UK-EU trade deal easy). The likelihood is that, in practice, ECJ judgments will be applied in the UK. Indeed the government’s own formulation, both in the White Paper and in its spokesperson’s response to Lord Neuberger, that Brexit will end the “direct jurisdiction” of the ECJ seems to suggest just that: what will happen is ‘indirect jurisdiction’.

So the data protection legislation is an early glimpse of just how meaningless the mantra of ‘taking back control’ and ‘making our own laws’ really is. The reality is that – unless the plan is for complete economic autarky, and I wouldn’t put that past some of the Brexit Jacobins – the UK will have less control over law making than it had as an EU member. The data protection case is an example of how, as I wrote at the time of the White Paper, what is in prospect is the creation of a whole host of shadow regulations and institutions to mirror those of the EU. In other words, a situation where the reality is less control will be created in order to give the illusion of having control so as to assuage (what the White Paper calls) the “feeling” of having lost control by being in the EU.

The Brexit election: ultras beware?

Like most political surprises, the decision to call a general election already seems entirely predictable if not inevitable. It is not just the irresistible prospect of smashing the Labour Party whilst it is in chaos, it is also the possibility of killing off the UKIP threat that has haunted the Tory party for years. The latter, in fact, is one obvious dividend for Theresa May’s Damascene embrace of the hard Brexit cause. And of course a fresh election would free the government of the 2015 manifesto pledges which place so many constraints on fiscal policy.

What is less obvious is how the election relates to the Prime Minister’s overall Brexit strategy. Her stated aim of overcoming parliamentary opposition to Brexit is manifestly absurd. There has been very little such opposition and the government has easily overcome it. The sources of that opposition in the Commons, the SNP and the LibDems, will be likely to remain or even possibly to increase as a result of the election. The House of Lords might be slightly less willing to use what limited power it has in the aftermath of a general election, but as the Article 50 vote showed it was in any case reluctant to do so. As for Labour, their position insofar as it can be understood at all, seems to be identical to May’s in terms of leaving the single market and the customs union and, certainly, to present no challenge to the government at all.

Nevertheless, many Tory politicians as well as the Brexit press seem happy to parrot the line that what is in prospect is the crushing of Brexit ‘saboteurs’ and the ‘silencing’ of dissent. And, no doubt, this latest grotesque outbreak of what I have called elsewhere Brexit McCarthyism would appeal to the PM if it were likely to be successful. Her basilisk-like appearance during the House of Lords debate is testimony to that, as is the extraordinary and unnecessary length she went to in attempting to avoid an A50 vote. But she must be aware that the reasons she has given for the election don’t make any sense in terms of Brexit opposition. Instead, it’s the things that she can’t say that make her decision explicable.

As with so much else in the story of Brexit, what is at stake is the internal management of the Tory party’s longstanding splits on Europe. The smallness of the majority makes these, rather than the opposition parties, the problem. And that problem lies not with the Tory remainers, who have failed to win any concessions and been routed already, but with the ultra Brexiters. May has found, as did Cameron before her, that they cannot be appeased. Once, they just wanted to leave the EU but stay in the single market. But on winning the referendum that was not enough. Thus May embraced the hard Brexit of leaving the single market and seeking a trade deal but now finds that the ultras are pushing for no deal at all.

More specifically, ever since the White Paper was published I have thought that May’s Brexit strategy would in due course run into problems with the ultras. As I wrote at the time, the plan seems to be to re-create by different means (and at great expense) many features of the single market, and since then even the commitments on immigration seem to have been softened. Moreover, May now seems belatedly to have realised that there will have to be some form of transitional period between leaving the EU at the end of the two year A50 period and the beginning of any new deal, and to have accepted that the EU will not enter into parallel ‘exit and future’ talks. The ultras have been muted about this so far, but when the negotiations begin – especially as the first item is likely to be the exit bill – this will not last. They will then start pushing hard for the ‘no deal’ scenario that May once also entertained but has now apparently retreated from, presumably having realised that it would be an economic doomsday for Britain.

So the (for May and the Brexit press) unsayable explanation of the election is to undercut the ultras before they can undercut the government. Having campaigned and presumably won an election on the basis of the White Paper plan and not the ‘clean Brexit’ (aka ‘no deal’) which UKIP will campaign on, the ultras will find it harder to oppose May when she pursues that plan. And if, as expected, she has an increased majority then it will be difficult for them to succeed if they do try to oppose her. That assumes that the new Tory MPs are not also ultras but even if they are, junior and ambitious MPs are much easier to control than the old salt veterans of the Maastricht debates, especially by a newly installed, dominant and, reputedly, loyalty-obsessed PM.

This interpretation of what the election means is shared by many within the EU and also within financial markets, who believe it makes a softer Brexit more likely. These terms are relative, of course, in that ‘softer Brexit’ now means what used to be called hard Brexit, but it is softer than the ultra-Brexit position. This is why the pound, which has directly tracked every soft versus hard signal since last June, rose after the election was announced.

None of this is good news, except in the limited sense that indicates that May is trying to avoid the very worst case scenario that the ultra-Brexiters would force on her if they could. This seems consistent with the more general sense in recent weeks that May (and David Davis) are getting more realistic about the immense difficulties and dangers of Brexit. The plan – which the EU may or may not go along with – is a fudge which will leave both committed remainers and leavers dissatisfied but which may well be sufficient to keep the Tory party together and to satisfy enough of the electorate that Brexit is being pursued in a way which they can support or at least live with.

In that limited, tactical, sense May’s decision is an adroit one. But it may backfire. For one thing the outcome of the current election cannot be absolutely guaranteed – especially if the turnout is very low. In some ‘safe’ Tory seats where the remain vote was high, the LibDems might win and, more generally, it shouldn’t be forgotten that some 40% of those who voted Tory in 2015 also voted remain; nor that many leave voters are not habitual voters in general elections. That is highly unlikely to prevent the Tories winning but it’s certainly conceivable that the net result does not increase the government’s majority by very much. If so, May will have lost one very strong option in her arsenal as the negotiations progress, since it seems inconceivable that she could call another election within the A50 period. The ultras would then be in a strong position. On the other hand, if the outcome is a large increase in the Tory majority and if my analysis here is correct then it is a pleasing irony to think that the saboteurs May is seeking to crush are the ultra-Brexiters who are currently so enthusiastically supporting her.