The hard Brexit addiction

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

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

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

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

Not my Brexit (as always)

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

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

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

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

The Tory Brexit failure

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

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

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

The silence of the Tory leadership

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

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

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

The noisy minority

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

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

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

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

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

Chasing the dragon

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

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

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

‘Not for EU’ labelling: a case study of the Brexit mess

An important development in the Brexit process occurred at the beginning of this month, with the introduction of ‘Not for EU’ labels. As well as being important in its own right, it serves as a case study of the utter mess that Brexit has created, a mess which far from reducing ‘red tape’ has massively increased it, and a mess which is both the cause and consequence of multiple confusions. It speaks volumes for just what a mess Brexit has created that even this single issue needs a blog post of over 3000 words to disentangle what is going on, and, even then, only by leaving out a lot of the granular detail.

What is happening?

Since 1 October, all meat and some dairy products moving from Great Britain (GB) to Northern Ireland (NI) have been required to carry labels saying ‘Not for EU’. Goods bearing that label can legally be sold in NI but cannot legally be sold in the EU. This rule applies to such of those products as originated outside GB, including from the EU, if they have come to NI from GB, as well as to those actually produced in GB.

This is phase 1 of the implementation of regulations arising from the Windsor Framework. In phase 2, starting on 1 October 2024, this labelling requirement will also apply to all meat and all dairy products sold within both GB and NI. Finally, in phase 3, starting on 1 July 2025, it will additionally apply to several other products, including fruit, vegetables and fish, again in both GB and NI.

These are the rough outlines of the requirements but, as usual with Brexit, there is a lot of complexity beyond the outlines, in this case about exactly what products are affected and exactly what has to be labelled. The details of this are set out on the government’s website (some of which read like a script from Yes Minister: I particularly liked “if herbs are added to cheese or fruit to yoghurt, they are dairy products as the plant product adds flavour.”)

Although ‘Not for EU’ (NFEU) labels are not yet required for goods sold in GB, there are reports that they are already appearing on products on GB supermarket shelves, with one example, which received attention on social media last week, being an M&S ready meal in a store in Suffolk. Another example, this packet of Sainsbury’s French ham which was on sale in late September with an NFEU label in a store in England, is of note as it illustrates that the labels are applied even to produce originating in the EU.

Their appearance in GB suggests that some retailers have decided it is cheaper to have identical labelling across the UK and/or that it gives them greater flexibility in what stores they can sell the goods in and/or that it saves the costs of undertaking two rounds of package re-design as the phases unroll. For, all other issues aside, it is important to understand that implementing these regulations will cost millions of pounds for each supermarket chain, not to mention the costs for smaller businesses, all costs which are likely ultimately to be passed on to customers as higher prices.

At all events, as this labelling has begun to appear it has already attracted a lot of, mainly adverse, comment, and a certain amount of confusion – in particular, in the idea that the label denotes a ‘deficient’ produce which does not meet EU standards. The reality is, again, more complex. I tried to explain some of this in a short Twitter thread last week, but many of the responses showed that I had not done so sufficiently clearly and, in any case, Twitter isn’t a good medium for complexity. Actually, I also discussed it briefly when it first became clear, last May, what was in prospect, but that probably didn’t attract many people’s interest because at that point there were no actual labels in use. Now that there are, and with that use set to increase, it may become a major issue, especially as regards public opinion about Brexit.

So this post will explain in more detail why NFEU labelling is happening, what it means, what it does not mean, and how it relates to Brexit as a whole.

Why is this happening?

There are three parts to the explanation. The first part is to do with the general way that the EU single market works, and what leaving it means for the UK. Under EU (or any) single market rules, goods are produced to a common set of standards, and each member state adopts those standards and takes necessary steps to ensure that producers within that state adhere to them. On that basis, whether produced in Berlin, Barcelona or Bologna, they can be sold without further checks or proof of compliance – in exactly the same way as applies to goods sold within GB regardless of whether they are made in Bath, Bridgend or Blair Atholl.

If a country is outside the EU, its companies can still sell their goods within the EU so long as they conform to EU standards. However, for a country outside the EU, there is no presumption that they do so, and there could be no presumption that they do so, given that such a ‘third country’ has made no commitment to adopting a common set of standards or to taking the necessary steps to ensure that its producers conform to them. Instead, exporters have to provide the relevant certifications of conformity, which are subject to checks, including possible physical border inspections – hence the import controls that the EU now applies to goods coming from GB (although the UK has yet to introduce them on imports from the EU).

In this respect, it is irrelevant that UK standards and EU standards were identical at the time of Brexit, and still largely continue to be the same, because there is no commitment from the UK to maintain and ensure identical standards. That is, the UK may actively decide to diverge by changing standards, or may passively diverge by not adopting changes in EU standards. As regards agri-food products, which are what NFEU labelling is concerned with, the EU offered the UK a ‘dynamic alignment’ of Sanitary and Phytosanitary Standards (SPS) deal, whereby the UK would commit to neither actively nor passively diverging from EU standards. This was rejected by the UK, partly on the grounds that it would compromise ‘sovereignty’, and partly because it was argued it would reduce the scope for future trade deals (especially with the US), which might entail diverging with EU SPS (even though the EU had also offered the option of a temporary dynamic alignment agreement).

So now comes the second part of the explanation of NFEU labelling. Given these circumstances, amongst others, the hard Brexit of leaving the single market (and customs union) entailed a regulatory (and customs) border between the UK and the EU. For GB the location of that border was straightforward: the coast and airports. But for NI it implied a land border with Ireland which, despite some Brexiters’ continuing denial, was politically and arguably legally impossible. This, then, became perhaps the central complexity of the Brexit Withdrawal Agreement negotiations, leading ultimately to Boris Johnson’s Northern Ireland Protocol (NIP) which created an Irish Sea border between GB and NI which became operable in January 2021.

There followed two years of complex and bitter dispute, which I won’t summarise here (but see numerous previous posts), culminating in the agreement in February 2023 of the Windsor Framework (WF), a series of measures to make the Irish Sea border smoother and less intrusive. A key provision was the creation of ‘green lanes’ through which certain products could flow from GB to NI with minimal paperwork and no routine physical checks. Enabling this is what gives rise to the NFEU labelling, to help ensure that these products do not end up being sold in the EU single market, most obviously in or via Ireland. The result, according to Northern Ireland Secretary, and enthusiastic Brexiter, Chris Heaton-Harris will be “as close to a frictionless border as we can have”.

However, this doesn’t explain why NFEU labels will also end up being required in GB shops. So this brings us to the third part of the explanation. Whilst NFEU labels in NI are required by the WF, their use in GB is not a requirement of the WF but is purely the decision of the UK government. As I discussed when that decision was announced, it was taken for what Foreign Secretary James Cleverly called “practical and philosophical reasons”. The ‘philosophical’ reason was as a sop to Brexiters and NI unionists, aimed at reassuring them that NI was not being treated differently from the rest of the UK. The ‘practical’ reason was so that businesses do not have to use different labelling according to whether their products are sold in GB or NI (this also being the probable reason why some businesses are already using the label in both).

What does it mean?

Fundamentally, the label means one thing and one thing only: the product it is on cannot legally be sold in the EU. This leads some, perhaps mainly ‘remainer’, commentators to conclude that the product does not meet EU standards. That is a false conclusion. It doesn’t necessarily mean that it does not conform to EU standards and, at the moment, in most, and probably almost all, cases it does conform to EU standards.

However, it might not meet EU standards, and that will depend on whether all three of the following conditions are met:

·         if GB has actively diverged (e.g. the government’s decision to allow the use of the neonicotinoid pesticide thiamethoxam, which is banned in the EU) or passively diverged (e.g. by not following the EU in its post-Brexit ban on the use of Titanium Dioxide as a food additive) from those standards;

AND

·         if the product in question is one to which such divergences apply;

AND

·         if the manufacturer of the product has decided not to follow the prevailing EU standard.

So the fact that a product is marked NFEU doesn’t mean that it doesn’t meet EU standards, and it doesn’t mean that it does. It just means that there is no way of knowing for sure either way.

From the EU’s perspective, that is vital information, as it means that it is definitely not for legal sale in the EU single market as it cannot be guaranteed to meet EU standards. It does the job for which it is intended under the Windsor Framework, allowing it to use the ‘green lane’. But that job is an irrelevant one for UK consumers. This is also a point which seems to cause confusion amongst some, again perhaps mainly ‘remainer’, commentators on social media, who argue that, because the product is labelled NFEU and so cannot be guaranteed to meet EU standards, it should be avoided in favour of an alternative product which is not so-labelled.

However, this misses the crucial fact that products which are not currently labelled NFEU are just as unlikely (or likely) to meet EU standards. The absence of the NFEU mark does not mean ‘this product is for sale in the EU’. All that consumers can know is that a product legally for sale in the UK meets prevailing UK standards, whether or not it is marked NFEU. They do not know whether it meets EU standards, whether or not it is marked NFEU.

What is the GB situation?

This is especially confusing in GB at the moment given that some retailers are voluntarily beginning to use NFEU labels for some products before they are legally required to. This might lead people to conclude that Retailer A’s ready meal X, marked NFEU, is less likely to meet EU standards than Retailer A’s ready meal Y, which isn’t marked NFEU. Or that Retailer A’s Shepherd’s Pie ready meal, marked NFEU, is less likely to meet EU standards than Retailer B’s Shepherd’s Pie ready meal, which isn’t marked NFEU. But none of these conclusions has any basis: to repeat, neither the presence nor the absence of the label tells people whether or not the product conforms to EU standards.

Some of this confusion may disappear once the regulations are fully rolled out, as it may well be impossible to find directly comparable products which don’t carry the mark. However, there will still be scope for similar confusions because even then it will only apply to some foodstuffs. For example, whereas fresh fruit and vegetables will have to be marked NFEU when phase 3 comes in to force, comparable tinned fruit and vegetables will be exempt. Equally, comparability aside, the full roll-out may lead consumers to think that those types of products without NFEU labels are those that still conform to EU standards. But that would be wrong. For example, breakfast cereals will not have to have NFEU marks, as they are not included within the regulations, but it won’t mean that they meet EU standards (nor will it mean that they don’t).

The issue here is that NFEU labelling is only legally necessary for those products (effectively, perishable products) which are eligible to use the ‘green lane’ from GB to NI under the Northern Ireland Retail Movement Scheme. But, even here, there is a further complexity because, judging by experience in NI so far, retailers are going to choose to mark all products as NFEU, even though they are not obliged to. The reason, I assume, is that given the complexity of the regulations, it is much easier to make sure the retailer doesn’t fall foul of them at store level by simply marking everything NFEU.

What about future divergence?

It may be that, over time, there will be greater divergence between UK and EU standards, making it more likely that the first of the three conditions, listed above, for an NFEU label meaning that the product doesn’t meet EU standards is met. Clearly many Brexiters want this. But there is always likely to be industry and consumer pressure on the government not to diverge, as illustrated this week by the report (£) of supermarkets urging the government to legislate to match forthcoming EU bans on products with links to deforestation, which will affect many foodstuffs.

Moreover, even where such pressure fails, and divergence occurs, the big producers and retailers who operate within both the UK and the EU are likely to continue to follow the EU standard, and thus the third of the conditions outlined above will not be met. So their NFEU-labelled products will continue to be more likely to still meet EU standards. Of course, to sell them in the EU, without the label, such businesses would need to obtain the necessary certifications, but they would not have to create a different product line.

By contrast, in those circumstances, domestic, often smaller, producers and retailers are more likely to make and sell goods that do not meet EU standards. That is not (necessarily) because they will actively decide to do so, but because they don’t have any reason to actively make sure that their products meet EU standards, since they are not selling them there. So their NFEU-labelled products will become less likely to still meet EU standards.

But it will still be the case that there is no way of knowing if an NFEU-labelled product meets EU standards or not, and no way of knowing whether one not marked NFEU meets EU standards or not. This remains the case even if there is massive future UK divergence from EU standards. Consumers won’t avoid that by avoiding NFEU labelled products, because it will be equally true of products which are not marked NFEU. As and when UK standards change, any product sold in the UK will potentially not meet EU standards, whether or not it bears the NFEU label, and may still do so, whether or not it bears the NFEU label.

It is worth adding that this entire issue may be overtaken by events. If there is a Labour government, and if, as Labour have consistently implied, but not quite said, that government seeks and secures* an SPS dynamic alignment deal with the EU then, as I understand it (I stress this because there are so many complexities and unknowns), the entire need for NFEU labels would disappear.

Confusion abounds

The deep origins of this expensive and confusing mess lie in multiple confusions on the part of Brexiters. One of the most infamous phrases in the Brexit process was Liam Fox’s suggestion, made in 2017 when he was International Trade Secretary, that ‘this should be the easiest trade deal in history’. Most people who remember it probably think it was akin to similar hubristic claims, such as Michael Gove’s ‘we will hold all the cards’. In fact, it grew out of the belief by supposedly more ‘sophisticated’ Brexiters that the fact of existing regulatory alignment between the UK and the EU would mean that a trade deal could be struck that would effectively replicate single market membership, including the absence of many non-tariff barriers (i.e. including regulatory and standards divergence).

As I discussed at the time of Fox’s comment, it was nonsense, and it has never really gone away. Some Brexiters, lamentably including David Frost during the Brexit trade negotiations, simply can’t seem to understand that the issue isn’t just about the actual standards of products, it is about being part of the systems that certify, register, and uphold those standards. Ironically, it is this same lack of understanding which creates confusion amongst those assuming that the NFEU label necessarily means that the product doesn’t meet EU standards.

Perhaps more importantly, the confusion, or something like it, seems to inform current Labour policy. Leaving aside SPS, where, as noted, that policy is most likely one of dynamic alignment, Labour seem to think that continued regulatory alignment in general is a way of solving the problems of Brexit. If so, that is only half-true. It is true that maintaining alignment with the EU (not as part of a specific agreement, but simply by unilateral UK shadowing of EU regulations and standards) will make life easier for British businesses and other organizations, to the extent that it does not force them to produce to two sets of rules. Though, even then, the benefit may not be huge since, as noted above, in practice many firms will simply follow EU rules – the case of arsenic levels in baby food being one recent example. However, more fundamentally, alignment in itself does not enable UK products to be sold freely in the EU because, to repeat, it’s not just about the standards, it’s about being part of the systems around the standards.

The other deep root of the NFEU situation, of course, is the Brexiters’ persistent refusal, going back to before the referendum, to understand or to be honest about the implications of Northern Ireland for (hard) Brexit, and vice versa. That is what ultimately led to the Windsor Framework and NFEU labelling, and also, indirectly, to the government decision to sweeten the pill for unionists by rolling out that labelling across in GB as well as NI, even though it didn’t have to and, anyway, the unionists are not impressed by it.

Against this background, British consumers can hardly be blamed if they, in turn, are confused by the labelling, and falsely, but quite understandably, take it to be a mark of inferior produce. It’s easy to see how ‘Not for EU’ will become interpreted as ‘not for you’. If that leads to public consternation, and deepens the unpopularity of Brexit, then it will be an irony the Brexiters richly deserve. They have endlessly deceived themselves and the public by treating hugely complex issues of international trade and supply chains in highly simplistic and deeply misleading ways, and they have also endlessly demanded that the UK diverge from EU standards.

So If the public are now misled by the NFEU labels, which arise from this complexity, and simplistically take them to mean that Brexit has made the food they buy unsafe, then the Brexiters will have no one to blame but themselves.

 

 
*It is an important question as to whether the EU would now agree to such a deal. It’s true, as noted earlier, that this was offered to the UK, but that was in April 2021 in the context of the unresolved NIP disputes. That may not still hold good post-Windsor Framework, which the EU may well regard as having settled matters to its satisfaction. It is certainly the case that Labour will not secure an SPS deal if, as some statements have suggested, it has in mind a ‘New Zealand-style’ equivalence regime – which has already been proposed by the UK and rejected by the EU. The difference between ‘dynamic alignment of regulation’ and ‘regulatory equivalence’ is, again, a very complex issue, as explained by a House of Commons Library research briefing.

Note: I’m not 100% sure yet, but I don’t think there will be a post next week.

Damage limitation

It has been a quiet week for Brexit news, but a revealing one too. The main story, if it is a story, is the latest though still not absolutely definitive report (£) that the government will pull back on the scope of scrapping Retained EU Law (REUL), so that it will ‘only’ remove 800 rather than all of the estimated 4000 pieces of legislation. That is still quite a lot of law that is going, and, crucially, there doesn’t as yet seem to be any confirmation of what these 800 laws are. Nor is it even clear whether the new plan is actually to ‘scrap’ all 800 or, as was originally proposed for the whole body of law, for this to be the default outcome but with provision to retain or amend in particular cases. So whilst this would be a sensible scaling back of the original plans, the damaging uncertainty about which parts of REUL will disappear, and when, remains.

As with all Brexit stories, this one has multiple dimensions and reveals much about the incoherence and inconsistency of the entire project.

A new pragmatism?

At one level, it is the latest sign, of which the Windsor Framework was the first, that Rishi Sunak’s government is more ‘pragmatic’ about Brexit than its predecessors. Notably, this decision seems to emanate from Kemi Badenoch, an enthusiastic Brexiter, in her newly expanded brief as Trade and Business Secretary which might suggest either that Sunak hopes that this will blunt the opposition of her fellow Brexiters or that, having to face the realities that they prefer to ignore, she, herself, has become a pragmatist.

Not that Sunak’s hands are clean. The Retained EU Law Bill started life under Boris Johnson as what was going to be the ‘Brexit Freedoms Bill’, and its legislative passage began, under the baleful stewardship of Jacob Rees-Mogg, during Liz Truss’s brief and disastrous premiership. But Sunak, in his ill-fated first bid to become Tory leader, was its enthusiastic champion, saying he would review or replace all REUL within the first 100 days of being Prime Minister. Then, as Prime Minister, he insisted it would go ahead in its original form as recently as this January even as a ‘senior government source’ was leaking that this was “impossible” (£).  

It may well be that in the first case this was purely to appeal to the Conservative membership voting in that leadership election, and in the second case was from fear of the ERG’s anger, something that their failure to derail the Windsor Framework now emboldens him to defy. If so, it serves to illustrate the wretched deformity that a relatively small number of Brexiter ideologues in the Tory Party have inflicted on politics. For without them, even given Brexit had happened, this self-evidently unworkable piece of legislation, which had even been ‘red-rated’ by the government’s independent Regulatory Policy Committee because of the inadequacy of its Impact Assessment process, would never have gone as far as it has. Nor would the retreat from it have had to be made inch-by-inch so as to avoid their tantrums, leaving things in this still indeterminate position.

The Brexiter reaction

Naturally it is all but impossible for Brexiters to recognize that what they had wanted was as impractical as it was undesirable. Ever the blameless victims, it had to be someone else’s fault. Thus, for some, Badenoch joined the list of those who, like Steve Baker, are deemed to have ‘sold out’ the true faith of Brexit purity. More commonly, in line with last week’s post, it was the lazy, incompetent and anti-Brexit civil service that got the blame.

Inevitably it was Rees-Mogg, in full spiteful schoolboy mode, who used his GB News bully pulpit to lead that line of attack, although it could be found across the Brexit bubble. Within that critique, the usual Brexiter simplism was also on display, with one pro-Brexit barrister claiming he could undertake all the work needed to scrap the full 4000 laws on his own in a year, or that a law firm could do so in a month.

Yet it's not entirely clear why this issue has become so totemic for Brexiters. Even in their own terms, to the extent that all these laws were carried over on to the UK statute book by vote of parliament, in the 2018 EU Withdrawal Act, they do not violate the principle of sovereignty. Indeed, if anything, it is the power the REUL Bill’s provisions give the Executive which does so (£).

In any case, when the 2018 legislation, described as the ‘Great Repeal Act’, was passed, let alone before the 2016 referendum, few if any Brexiters said, as Rees-Mogg does now, that passing the REUL Bill is “fundamental to the completion of Brexit”. So it seems to be yet another example of Brexiters making ever-harder demands for ‘true Brexit’ and, in the process, creating new tests to enable themselves to proclaim a “betrayal of Brexit”, in ways which even some Brexit supporters are beginning to see is ridiculous.

If there is no good Brexiter argument for the principle of the Bill, and especially for its original scope and speed, what is their case for its substance? Here, there is a remarkable coyness. There must be more than a suspicion that their desire is significant reduction in, in particular, employment rights, including the provisions of the EU Working Time Directive, although even Truss ruled out Rees-Mogg’s proposals for this as “half-baked”.

Certainly, now, Brexiters, including Rees-Mogg, are insistent that no diminution of employment rights or environmental protections is envisaged, instead talking airily of “pettifogging” product standards which supposedly make the UK less competitive and are “just annoying to people”, giving the example of vacuum cleaner power, apparently a reference to the EU rules introduced in 2017.

REUL and product standards

Reportedly (£), when Badenoch asked ERG members to identify examples of retained EU laws they wanted repealed, it was product standards that they, too, came up with. Although it’s not clear which product standards they were referring to, she rejected this suggestion “as Business Secretary and as a mother”.

That rather curious formulation doesn’t reveal what her specifically maternal concerns are, but perhaps she knows her Brexiter colleagues well enough to suspect they might not baulk at a good pinch of arsenic in baby food, just as they would perhaps regard sending small children up chimneys as a good way of boosting competitiveness, with the added benefit of giving woke and snowflake youths a short, sharp lesson in traditional British values.

However, the significance of Badenoch’s business brief is clear enough. Right across the business world there is substantial concern about the REUL Bill, with Roger Barker of the Institute of Directors criticising its entire approach and saying “ideally, we would like to see this Bill dropped”. Bluntly, those who know anything about product standards are quite happy to see the relevant retained EU law stay retained.

Of course, in the strange new world of Brexiter Conservatism, business and its representative bodies are seen as part of the whole ‘remainer Establishment blob’ but, that aside, this pre-occupation with diverging from EU product standards reveals one of the key ways that Brexiters don’t understand the single market, or the role of regulation in modern trade generally. Nor do they understand why, for both consumers and businesses, harmonized product standards are highly desirable.

For consumers, they offer a reliable guarantee without the need to delve into the technical minutiae of comparing UK and EU standards or worrying about compatibility issues. That guarantee may extend, as in the vacuum cleaner example, to the environmental impact of the product. As for people finding EU regulations annoying, in February last year Rees-Mogg, then the Brexit Opportunities Minister, called for the public to identify laws they wanted scrapped but, although the full results have never been reported, it seems to have yielded only trivial results. Certainly nothing has been heard of it since, rather like yet another absurd Rees-Mogg initiative, the government consultation on the supposedly burning public desire to remove the EU prohibition on selling goods using imperial measures only, which closed last August with the results still unpublished and probably quietly filed in the ‘Brexit stupidity archive’.

For businesses, far from divergence making them more competitive it makes them less so to the extent that it forces them to produce to different standards for the UK (or GB) and EU markets. Indeed, that’s well-illustrated by the fact that, to the relief of all British mothers, UK manufacturers will choose to follow the new EU standards on arsenic in baby foods, even if the British government doesn’t adopt them. It’s true that maintaining product standard alignment doesn’t in itself maintain all the benefits of single market membership, but it does reduce the costs of having given up membership. Clearly the same thing applies to conformity assessment marking, and it is to be hoped that the apparent turn to pragmatism over REUL will be followed by the final scrapping of the long-delayed UKCA mark* and that it, too, will be lodged in the Brexit stupidity archive where even Rees-Mogg seems to realise it belongs.

As I’ve pointed out in previous posts, this is not to deny that, Brexit having happened, there may be some areas where UK divergence makes sense. But that needs to be decided on a case-by-case basis, involving consultation with those who have relevant expertise or legitimate interests, undertaken in a sensible timescale, and with open public and political debate and parliamentary scrutiny. The REUL Bill process meets none of these criteria, even in its slimmed-down form (though the scale is more realistic). They are even more important if what is envisaged is indeed, despite the denials, the downgrading of employment rights or environmental protections.

The legacy of lies

All this would be true anyway, but it is made more true by the persistent dishonesty and bad faith with which Brexiters sold their project, and their long track-record of careless ignorance about what that project entails. This makes it all too easy to believe that the REUL Bill covers malign intent and/or that it will inadvertently create legislative and regulatory blackholes.

There is no better illustration of that mixture of the dishonesty, bad faith and careless ignorance than Boris Johnson. Whilst not exactly a news story, the full horror of Johnson’s premiership is freshly revealed with the publication yesterday of Anthony Seldon and Raymond Newell’s book Johnson at 10. The Inside Story. I haven’t read it yet and I’m not sure I could bear to do so, but the extracts (£) that have already been published, the early reviews, and an interview with Seldon paint an almost unbelievable, but all too easily believable, picture. It’s not just one of incompetence, venality and vanity, but of a person so psychologically and morally empty as to be unfit for even the lowliest position of responsibility, let alone that of Prime Minister.

It's a terrible indictment of the Conservative Party, and perhaps of the whole political system, that he ever came to power. As regards Brexit, specifically, it may be over-reductive to say that it wouldn’t have happened without Johnson, but he must have made a difference and, in such a close vote, even a small difference may have been decisive. It would certainly be untrue to say that he was alone in bringing grotesque dishonesty to the Vote Leave campaign, and for that reason it is hard to feel much sympathy for those ‘principled’ Brexiters who always knew he was ‘not one of them’. For they were happy enough to have him as their front man, just as those ‘liberal Brexiters’ who affect to despise Nigel Farage were happy enough with the votes be brought.

Leaving aside his role in the referendum, Johnson’s impact on how Brexit subsequently played out was utterly malign. Of the many examples that could be given, perhaps the most disgusting was what he did with the Northern Ireland Protocol, about which he lied to the electorate and to his own MPs and as a result of which he deeply damaged the UK’s international reputation and caused long-term harm to UK-EU relations. At the same time, he showed not just carelessness about Northern Ireland and its fragile peace, but reckless contempt.

The politics of damage limitation

Like the Windsor Framework, the tentative retreat from the REUL Bill is an example of repairing the worst of Johnson’s damage, as is the recent news that Sunak is seeking a new deal over passport checks. A report this week from the House of Lords European Affairs Committee points to further ways in which the UK-EU relationship could be improved, and the new EU Envoy to the UK has recognized that, post-Windsor, this is now a possibility.

These are all welcome things, so far as they go, but they amount to no more than damage limitation. And even the damage they are very slowly limiting is that of the way Brexit was done by Johnson and others – amongst whom should certainly be numbered Theresa May, whose early ‘red lines’ so constrained the parameters of how it was done – rather than the damage inherent in Brexit itself.

It is tempting to demand something better than gradual damage limitation from a future Labour government, but the biggest constraint upon that is the massive row that, under that or any government, Brexiter politicians and journalists kick up even at damage limitation, let alone anything bolder. It is they, as the instigators and defenders of Brexit, who bear primary responsibility not just for it having happened but for the political difficulties of addressing its failure now.

It is too much to expect it of Johnson, but if just one of the high-profile advocates of Brexit in 2016 had the honesty and courage to admit they had made a mistake that would help. To the extent that it might lead to more of them doing so it could make a decisive difference. Not one has done so. Until that happens, we seem set to limp on, a nation that has shot itself in one foot and is now trying to compensate by slowly fashioning a rudimentary crutch, all the time shackled and heckled by those who insist that to do so is a betrayal of hopping.

 

 

 

*As always, it’s more complex than this. One possibility is that the UK government decides to continue to recognize CE marking as valid for goods placed on the UK market as a whole (GB and NI). That wouldn’t mean scrapping UKCA marking but in practice, as with the baby food example, businesses would probably choose to use the CE mark. Another possibility is that UKCA marking will be required, but could be used without additional testing/ certification for goods which have been tested/ certified for CE conformity. There are also issues about what the fate of the planned UKNI mark will be. And there are different issues for, specifically medical devices. For an overview (though note it predates the most recent extension) see the briefing from Lexology. Clearly there is an interaction between decisions about product standards made in relation to REUL, and also those about whether to mirror (i.e. align with) subsequent changes in EU law, and if so in which areas, and those about conformity assessment testing, certification and marking. This whole area is a minefield and goes to the heart of the practical complexity of slogans about ‘taking back control’ and ‘sovereignty’, especially given the extensiveness of UK-EU trade and supply chain integration.

A new chapter?

As expected, the UK-EU Joint Committee overseeing the Withdrawal Agreement formally approved the Windsor Framework at its meeting last Friday. There is a palpable sense that this is a defining moment in the Brexit process and that, with caveats, a new chapter within it is about to start.

A chapter closes?

Procedurally, agreeing the Windsor Framework finally ends the Withdrawal Agreement negotiations. Of course, formally speaking, that occurred when the Withdrawal Agreement, including the Northern Ireland Protocol, was finalised in 2019 and signed in 2020. But, because of Boris Johnson’s dishonesty, negotiation of the Protocol effectively continued until now.

So that chapter, which brought shame to the UK and considerably damaged our international reputation, is now over, although the memory of it will no doubt linger in many foreign capitals. It leaves the issue of the Northern Ireland Assembly in "paralysis" (£), at least for now, but there is certainly no possibility left that the UK will see further changes to the Protocol to accommodate DUP objections. Thus the issues of the Assembly and the Protocol have now been decoupled. However, it can’t entirely be ruled out that, once the Windsor Framework provisions actually come into effect, there will not be new calls, not just from the DUP but from Brexit Ultras, for more changes. For neither group is reconciled to the basic principles of the Protocol.

Additionally, notwithstanding the existence of these irreconcilables, there is a sense that, as pro-Brexit Times columnist Iain Martin put it (£), “the Brexit wars are finally over”. In other words, the failure of the ERG and others to derail the Windsor Framework marks the end of the stranglehold of the Brexit Ultras and their ability since 2016 to keep pushing for harder versions of Brexit. In some ways that reflects how many Tory MPs, including many Brexiters, came to lose patience with the Ultras. It perhaps also reflects their realization that most of the public have done so, and indeed have lost interest in Brexit itself, as well as much of such enthusiasm as there was for it.

In this way, as I suggested in last week’s post, Britain’s ‘Brexit fever’ may have broken but, as I also suggested, that has to be caveated by the possibility of an ERG resurgence, perhaps after the next election, and by the way that ‘Brexitism’ has become embedded within a powerful segment of British political culture.

A new chapter opens?

If these issues mark the end of one chapter, that brings the sense of a new one opening. It would necessarily be a new chapter, not a new book, because it is inherent in Brexit that there is no end to it. That is, there will always be ongoing negotiations between the UK and the EU about their relationship in general, but also there are specific review mechanisms, most notably for the Trade and Cooperation Agreement, which will continue to refine, define, and re-define what Brexit means.

The possibility, at least, is that this new chapter will begin what Martin calls “an adult relationship” with the EU, or what I called one of “rapprochement” in a recent post. There are some positive signs of this in reports (£) that Rishi Sunak will seek to deepen trade, security, scientific and other ties with the EU, whilst at the same time rowing back on the wholesale sunsetting of most retained EU Law. Such an approach is certainly gestured towards in the text of the Windsor Framework, as I discussed at the time it was made public. King Charles’ visit to Germany and his postponed visit to France are being widely read as part of this new chapter.

From the EU side, the changed mood has already led to the Commission agreeing to revive the stalled agreement on banking and other financial services cooperation, as well as the more widely publicised offer to resume UK participation in the Horizon Europe research programme (now the subject of a financial dispute (£), so improving relations still has some way to go). It is also generally understood (£) that it was the completion of the Windsor Framework which enabled completion of accession to the CPTPP trade bloc, which was announced today, a lesson that the UK’s relationship with the EU directly impacts on its wider relationships.

The caveats here are to do with the consistency of Sunak’s follow-through, including the extent to which he will really pull back for the existing Retained EU Law Bill’s provisions. Similarly, to what extent will his political pledges to ‘stop the boats’ create a new schism with the EU and others over migration policy generally and human rights specifically? These and similar questions beg the over-arching one of the extent to which the UK has a coherent post-Brexit strategy at all. Earlier this month, after the Windsor Framework had been announced, I argued that it did not. Will the adoption of the framework change that?

It may be some time before the answer to that question is clear. But what it reflects is that, to the extent that we are now in a new chapter of Brexit, it is one in which the UK will be forced to address the question that should have been seriously asked and answered before even beginning the process: what is the point of Brexit? Having an “an adult relationship” with the EU, welcome though that would be, cannot be the answer to that question, and won’t provide an answer to it. Instead, what is necessary is for the UK to be adult with itself, meaning serious and honest political and public discussion about Brexit.

The waning influence of the Brexit Ultras may make that easier, but we are still some way off it. It certainly isn’t a matter, as a recent Telegraph leading article simpered (£), of Brexit needing “a new cheerleader” whose role would be “championing a project that to some degree is a leap of faith”. This kind of vacuous boosterism and the adolescent hero-worship it caters to is part of what got us into this mess. Similarly unrealistic is the article’s closing hope that “the revolution is only just getting started”. There isn’t going to be any Brexit revolution delivered by some visionary leader, there’s just a deeply unpopular mess to be dealt with, and doing so will require facts not faith.

The first steps to a new chapter

The first step in this will be facing the fact that, economically, Brexit has been, and will continue to be, deeply costly. The headline figure, re-iterated by the head of the Office for Budget Responsibility (OBR) last weekend, is of GDP being 4% lower than it would otherwise have been, a bigger impact than the Covid pandemic. It’s not a new figure or comparison: the OBR said the same thing in October 2021, and it continues to do so with 18 months' more data. Moreover, this figure is built in to the government’s own budget calculations.

We are now getting to the point when these are not just forecasts but are becoming established facts. Actually, despite what is often claimed, what we are seeing is not so very different to the Treasury’s pre-referendum long-term forecast. That estimated (p.7) the GDP loss over 15 years compared with remaining in the EU to be between -4.6% and -7.5% (assuming, as happened, a UK-EU Free Trade Agreement), but it is heading to be slightly better than the worst case scenario, given the latest OBR estimate of -4%, or within the estimated range, given the latest CER estimate of -5.5%. The Treasury also estimated total trade volumes would be -14% and -19% over 15 years compared with staying in the EU (p.128), and we are heading to be within that, with the latest OBR estimate being -15%. And the Treasury estimated productivity being -3% over 15 years compared with staying in the EU (p.131), but so far we are heading for it to be worse than that, with the latest OBR estimate being for -4%.

These and many other headline economic figures, such as those for investment and tax revenues, along with what might be called sub-headings relating to particular sectors, are now well-established. Perhaps they will change, but there’s no sign so far, and no reason to expect it. So accepting that, and also ceasing to hunt around for this or that snippet of data that supposedly disproves the general picture, is the first step towards a serious political and public debate.

The second step is to drop all the manifestly false claims about the benefits of Brexit. Of these, the two that are probably the most common, and certainly the most egregious, are that Brexit enabled a faster Covid vaccine roll out and that it enabled more pro-active support for Ukraine. Less egregious, but still misleading, are claims that independent trade deals, including CPTPP accession, are much of a Brexit benefit, or come without costs.

The third step is to drop the nonsense that Brexit was just about ‘regaining sovereignty’ in the abstract, irrespective of any tangible benefits or, indeed, costs. If that were so, then Brexiters wouldn’t make the false claims about vaccines, Ukraine and trade deals. By doing so, they tacitly admit that it was not so, and therefore it is legitimate to examine each and every aspect of Brexit in terms of its effects, without chasing the false hare of sovereignty.

The final step: ‘de-Brexitification’

Those three steps are, obviously, a challenge to Brexiters. If that challenge is met, which is by no means assured, the final step is a challenge to both Brexiters and erstwhile remainers or re-joiners. There are all kinds of policy changes that Brexit enables, including those which some, perhaps many, would regard as positive. The banning of live animal exports, currently being legislated for and something long campaigned for by the RSPCA and Compassion in World Farming, is a possible example. Where they exist Brexiters shouldn’t over-claim for them, but those opposed to Brexit needn’t deny them. EU regulations aren’t perfect in every respect, but that doesn’t constitute a case for Brexit; equally they don’t need to be defended as if they are perfect in order to make the case against Brexit.

This leads to a bigger point. For many erstwhile remainers, and certainly for re-joiners, the obvious solution to the damage of Brexit is to re-join the EU, or at least to re-join the Single Market and/or create a customs treaty with the EU. For them, any divergence from EU regulations is misguided in itself, and also an obstacle to future re-joining. For Brexiters, the converse applies: divergence is seen as a good thing in itself, simply for being divergence, and will make re-joining in the future more difficult.

I would suggest that both of these positions are misguided and, certainly, that they will need to change if we are indeed to enter a new chapter. We have left the EU, and for so long as that is the case there will be questions about specific regulatory alignments and divergences (if only as EU rules change). These need to be considered on their own merits, not in terms of the fact of them being alignments or divergences. In other words, they need to be decoupled from having left the EU. Equally, they should be decoupled from the possibility of re-joining the EU. If and when there is a strong and durable political consensus to re-join, that will entail a process during which there will be plenty of time for convergence (just as for any acceding country) or re-convergence. So long as that consensus exists, then divergence will not be the barrier re-joiners fear and Brexiters hope*.

In short, if this is to be a new chapter, post-Brexit policies will need to be ‘de-Brexitified’.

The illustrative case of Solvency II reform

This can be illustrated by one potentially very significant post-Brexit regulatory divergence, the reform of Solvency II regulations, something long pushed for by Brexiters and already being pursued by the government with increasing urgency (£). What this would mean in practice is that insurance companies and pension schemes would be allowed to hold fewer and more diverse reserves and use their funds to invest in, for example, infrastructure or new technology projects. As I explained in February 2022, when I first discussed this possibility on this blog, it is a highly complex and technical subject, and it divides opinion within the financial services industry (it also happens to be an area I have some, albeit dated, familiarity with, as 30 years ago I wrote my PhD on the regulation of the insurance industry).

The key point about this is that, as at a generic level is true of every single regulatory decision, there is a trade-off between reward and risk. In this case, crudely, the reward is freeing up massive funds for much-needed investment and generating proceeds that benefit policyholders or pension scheme members. However, there’s also an argument that it wouldn’t make much difference to these rewards in practice. The risk is that holding fewer reserves and/or more risky investments could lead to insurance companies or pension schemes collapsing, destabilizing the financial system and damaging policyholders or pension scheme members (and probably, ultimately, taxpayers). Again, there’s also an argument that it wouldn’t make much difference to these risks in practice.

There isn’t a ‘right’ answer here. Solvency II was in large part a response to the financial crisis and, as such, calibrated the regulatory calculation more towards lowering ‘risk’. Such calibrations are as much ‘political’, in the generic sense of political judgements about the prevailing economic climate, as ‘technical’. Arguably, that means that the present moment is not one to re-calibrate towards ‘reward’, given the pension fund vulnerabilities exposed by the Truss mini-budget (£) as well as the recent instability in the banking system following the collapse of Silicon Valley Bank (although Solvency II reform isn’t about banking regulation, the two are potentially related because insurers are exposed to banking risks). Against that, these might be judged as specific and unusual events with little wider implication, or that the risk is worth taking. That’s a judgement call, but it isn’t – or shouldn’t be – about Brexit.

It’s also not a UK versus EU question. On the one hand, Solvency II wasn’t some burdensome, inflexible EU Directive imposed against the UK’s wishes. It was unpopular with some UK insurance companies, but it was very heavily influenced by UK financial regulators at the time. In particular, it was an “evolutionary” development from the UK’s previous Individual Capital Adequacy Standards regime. On the other hand, there is a process underway within the EU to reform Solvency II for very much the same reasons as in the UK, namely unlocking funds for investment. It’s actually perfectly possible that both the UK and the EU will end up in similar places, and the EU might make changes more quickly than the UK (£), although this shouldn’t, as Brexiters like Rees-Mogg want (£), be seen as a ‘race’.

It would be quite absurd for Brexiters to support Solvency II reform simply because Brexit makes it possible, irrespective of its merits. Doing so won’t make Brexit more successful or secure. Conversely, it would be absurd for anti-Brexiters to oppose Solvency II reform, regardless of its merits, simply because it was made possible by Brexit. Doing so won’t make Brexit more of a failure or re-joining more likely. As to whether Solvency II reform turns out to be successful, that will depend on whether the assessment of the risk-reward balance turns out to be right or not, something which will probably take years to know and which will be down to things which are nothing to do with Brexit, and in itself will neither vindicate nor discredit Brexit.

Where might this new chapter end up?

The case of Solvency II illustrates the more general point that as time goes by there will be more regulatory divergence, whether as a result of decisions made in the UK or the EU. There are already several other examples of UK-initiated divergence in force or in train, including subsidy control,  data protection, artificial intelligence, and gene editing (for a full listing, see the UKICE regulatory divergence tracker).

There are other cases where the UK will decide to follow EU regulation, as has already effectively happened with restrictions on single-use plastic, and the logic of market size suggests there will be many more examples. These may well include the reversal of some of the planned but postponed divergences, such as conformity assessment marking (the long-delayed UKCA mark). Indeed, the tone of Sunak’s government is already markedly less bullish about divergence in general than its predecessor, and more concerned with limited divergence aimed at specific sectors.

The more the UK approaches each of these issues as discrete policy questions in their own right, rather than via support for or opposition to Brexit, the more politics will have been ‘de-Brexitified’. If we get to that point, then we will be at the end of the chapter which, arguably, we are now just starting with the adoption of the Windsor Framework. Brexit will be less toxic and simply less ‘present’, something also aided by the passing of time and, with that, of the leading Brexiters and many leave voters.

If all that comes to pass, then it will be the prelude to the next chapter in which it will be possible for a future government, and political culture generally, to take the logical next step and ask the question: why doesn’t the UK join the EU?

 

 

Note: CPTPP and re-joining the EU

*It has been claimed this week (£) by the Brexiters’ favourite trade guru, Shanker Singham, and others, that joining the CPTPP will mean “Britain can never rejoin the EU” (to be fair, that is the headline – the text says “EU customs union”). That is nonsense (and if it wasn’t it would be a strange outcome for Brexit ‘sovereignty’), for the obvious reason that, ultimately, Britain could simply leave the CPTPP. But, in any case, it’s far from clear that, if it came to that point, membership of both would be impossible. Indeed, there have even been suggestions that the EU itself might join the CPTPP.  See also commentaries from more ‘neutral’ trade experts Sam Lowe, David Henig and Dmitry Grozoubinski. More generally, the Brexit boosterism, not just economic but geo-political, that already looks set (£) to accompany CPTPP accession suggests that we are still not really in the ‘new chapter’ discussed in this post. That doesn’t mean that, overall, CPTPP accession is ‘a bad thing’ in itself, it just isn’t that much of a thing at all.

  

I will be taking a break from blogging over Easter, and expect the next post to be on Friday 21 April.

Morrissey's Brexit

There’s really only been one major Brexit development this week, the vote on the Statutory Instrument to create the Stormont Brake as part of the Windsor Framework. If that sounds convoluted that’s because it is. This wasn’t about passing primary legislation, and there was only a short debate, and no amendments were allowed. It was not even about the entirety of the Windsor Framework (WF), although it seems that the government will treat it as such. Nor was there any possibility of the government losing the vote, as the Labour Party was pledged to support it.

What difference does it make?

Nevertheless, it was important in terms of how many, and who, would vote against. In the event, just twenty-nine did, of whom a mere twenty-two were Conservatives, with the others being DUP MPs plus the whipless, and increasingly unhinged, former Spartan Andrew Bridgen. The list of Tory rebels, by the way, includes some of the most disreputable and despicable politicians of our, and perhaps any, age. So it was a fairly puny revolt, and though it was notable that both Boris Johnson and Liz Truss joined it, what was more notable was that neither have the pull to have made it a significant challenge to Rishi Sunak. Johnson himself had to interrupt his ill-conceived defence against charges of having misled parliament, of which more below, in order to cast his vote.

It has been known for some time that the ERG’s membership has fallen, and the group is much less organized than in its 2018-19 heyday. Its members, or ex-members, are also split, and some of those in government, especially Chris Heaton-Harris and Steve Baker, were closely involved in, and became advocates of, the WF. Indeed, in Baker’s case, that led to the one-time ‘Brexit hard man’ being thrown out of the ERG’s WhatsApp group whilst being described as a “little weasel” by Nigel Farage. As Robert Shrimsley, Chief UK Political Commentator of the Financial Times, observed, “the revolution eats its own children”. Perhaps more to the point, it is the latest example of the difference between taking responsibility for the realities of delivering Brexit and the luxury of espousing Brexit purity from the sidelines.

Even so, there are plenty of Brexiters on the Tory benches who are not ERG members but who might have been galvanized to rebel in different circumstances. Had there been enough to mean that the vote would have been lost without Labour support that would have been a significant embarrassment for Sunak, and a sign that the Brexit Ultras are still a force to be reckoned with, but there were not. It’s true that several Tory MPs didn’t vote, but it is impossible to tell how many of these were meaningful abstentions and how many were simply absences. In any case, abstention hardly bespeaks of Cromwellian resolve.

The day before, the ERG’s ludicrously-named, if not downright ludicrous, ‘Star Chamber’ had found the WF, including the Stormont Brake, to be unacceptable. But the fatal political flaw in this, as with all the Brexiter objections to the WF, is that everything they object to about it was also contained within the Northern Ireland Protocol itself, which they voted for. Not only that, but it was part of the ‘oven ready deal’ the 2019 Tory Government was elected to deliver. Now that the reformed Protocol has, effectively, been accepted, there is little realistic prospect of these objections being resurrected. Equally, the persistent Brexiter lie that the Protocol was always intended to be temporary, wheeled out again by Priti Patel in a Telegraph article this week (£), must surely have died this week, even if any of them actually believed it. It is expected that the WF will now be formally adopted at today’s meeting of the Withdrawal Agreement Joint Committee.

There is a light that never goes out

So it is plausible to say that the grip of the ERG has finally been broken, and that Sunak, unlike any of his predecessors since 1992, has successfully faced them down. Certainly, Wednesday’s vote is widely seen to have strengthened his political position, with Jessica Elgot of the Guardian writing of it “having been a moment of pure delight for the Prime Minister”. Against that, it’s not just plausible but likely that, if the Tories go on to lose the next election, there will be a backlash from the Brexit purists, saying that the problem was that Brexit was betrayed.

By that, they will mean betrayed not just by Sunak and the WF but also by the failure of both Sunak and Johnson to deliver the deregulatory nirvana that many of the Ultras crave, for it is worth recalling that Brexiter dissatisfaction about delivering these ‘benefits of Brexit’ long pre-dates Sunak’s arrival. Johnson, if he stays the course, might seek to lead that backlash, arguing no doubt that his own failures were the fault of others. But his political stock may never recover, even if he dodges the bullet of the Privileges Committee hearing, and, anyway, the true Brexiters have always known he was not of the faith.

More likely, it will be championed by one of the true believers, perhaps one of this week’s WF rebels. Truss is probably irredeemably tainted by failure, a failure for which the greatest evidence is her own inability to recognize it, so Priti Patel or Jacob Rees-Mogg are more obvious candidates. It is already possible to see the battle lines being drawn, with Sunday Telegraph Editor Allister Heath, in an article (£) ominously yet absurdly titled “The Brexit revolt against the Remain Establishment has only just begun”, hailing the twenty-two Tory rebels as “heroes” and insisting that, if Sunak loses the next election, “the next Tory leader will be chosen by the party membership and will be a Brexiteer, anti-ECHR and anti-woke”. In other words, neither the Tories, nor British politics, have yet seen the back of the ERG.

Ask

All that is for the future. More immediately, the Windsor Framework vote could be a sign that, as I put it in a recent post, Britain’s Brexit fever has broken. However, there are several questions to be asked about that. One is what now happens about the operation of the Northern Ireland Assembly, which of course is in no way resolved by the vote, even though a new opinion poll shows not just strong support amongst the people of Northern Ireland for the WF (overall 45% support, 16.9% oppose), but that even within the unionist community only 15.7% (though 22.8% of DUP voters) are opposed to it (and 45.8% support it, though only 36% of DUP voters). Wrapped up in that is whether, regardless of whether the Assembly is restored, the Protocol will go on being not just a running sore for some unionist politicians, but also, in being so, will function as a rallying point for Brexiters generally.

Another question is whether, how, and to what extent, Sunak follows up his success with the WF by moving in more pragmatic directions on Brexit policy generally. As I suggested last week, there are already signs that he will do so in relation to defence and international relations. But what about domestic policy and, crucially, the Retained EU Law Bill? If he continues with the latter, Brexitism can hardly be said to be in abeyance. If he doesn’t, will that provide a new rallying point for the Brexiters? It is of note that both this Bill and the Bill of Rights Bill are on the agenda for today’s meeting of the Partnership Council of the Trade and Cooperation Agreement.

Barbarism begins at home

Even if passing the Windsor Framework has broken the Brexit fever as regards government policy, it will also serve to re-enforce and perhaps grow the poisonous reservoir of Brexit betrayalism within British Conservatism in its wider sense. That matters not so much in terms of Brexit policy but the rag-bag of populist causes with which Brexit has become bound up. Those causes have their adherents amongst the Tories, of course, with Lee Anderson and Jacob Rees-Mogg being obvious examples, but also within the Reform Party and the very powerful media and social media nexus that promotes Conservative populism.

Although the political parties in this space, not just Reform but the rump of UKIP, and Reclaim, which has never been more than a rump, remain angrily disunited, there is a sense of this ‘movement’ coming together, an example being the way GB News employs as hosts Tories like, again, Rees-Mogg and Anderson, as well as Nigel Farage and oddballs like Laurence Fox, alongside its wider cast of viciously aggressive presenters and freakish commentators. Similarly, an offshoot of Fox’s Reclaim was recently revealed to have funded Andrew Bridgen, whilst Bridgen himself co-hosted a lavish dinner for anti-vaxxers at the Carlton Club last month. In some ways, such loose-knit communities of interest are more effective than a political party, creating the impression of a disorganized ‘general consensus’ rather than an orchestrated agenda.

GB News is also becoming unusually favoured in being granted interviews by Tory Ministers, who sometimes are even interviewed by Tory MPs moonlighting as presenters, with the approval of Ofcom, whilst on other programmes these same Tory MPs – Rees-Mogg again is an example – feature as interviewees. And, of course, GB News is only part of the wider and more established media phalanx pushing similar agendas, especially still influential print titles including the Telegraph, Mail and Express.

Meanwhile, the increasingly cowed and compromised BBC, though certainly a very far cry from GB News, routinely hosts spokespeople of the ‘Tufton Street’ thinktanks, and bends over backwards to placate its implacable populist critics. Thus, with or without parliamentary representation, or even creating a single party, this populist movement will continue to exert a significant and malign influence on the British polity. Perhaps most alarming is how difficult it is to distinguish between some of the apparently ‘respectable’ populists and far-right street groups like Britain First.

Much of this Conservative populism has nothing to do with Brexit directly, and many of its causes and tropes long pre-date Brexit. However, Brexit is now its touchstone, being both an article of faith and the one occasion when one of its causes was voted on and won. That strengthens the longstanding populist idea of speaking for ‘the silent majority’, and by a kind of osmosis the narrow vote to leave the EU became configured as ‘the will of the people’ and then ‘the will of the people’ for Brexit got repurposed to present many other populist causes as if they, too, bore the imprimatur of having been subject to ‘the biggest exercise in democracy our country has ever seen’ (sic).

This charming man

That elision is evident not just in the rough and tumble of anonymous social media slanging matches and newspaper columns like that of Allister Heath, mentioned earlier, but in the writings of populist intellectuals. For example, in last week’s Mail, politics Professor Matthew Goodwin managed to run together issues as diverse, yet predictable, as Brexit, the paucity of further and technical education, the ‘over-representation’ of ethnic minorities in TV shows and adverts, and, of course, “’woke’ policies in our schools [and] universities” to propose that “there is a yawning gap between the values of the New Elite and the majority”.

Tellingly, Goodwin sometimes slips between referring to the majority and to “ordinary people”, something reminiscent of the Farage formulation of the Brexit vote as being “a victory for ordinary decent people” and its implication that very close to half the country is, in some way, neither ordinary nor decent. The difference is that, after that brief moment of triumphalism, Conservative populism has now reverted to its habitual sullen victimhood, a kind of hybrid of the bedsit self-pity of Morrissey’s early lyrics and the aggressive martyrdom of his more recent political stances (yes, it took a while, but now the title and sub-titles of this post make sense).

None of this is new – Goodwin talks of the ‘New Elite’, but most of what he says about it was already hackneyed when I was young, and he himself rather paradoxically asserts that “The New Elite has been on manoeuvres for decades”, leaving one to wonder how far back we have to go for the Old Elite, or even quite what it was. Certainly historians will be puzzled to learn that “in days gone by the governing classes had much more in common with the millions of ordinary people who shared their nation”, though they would probably spot it as an example of populist nostalgia in which even the elite ain’t what it used to be. And all of us might be puzzled as to why, if this ‘New Elite’ is so powerful, it is having to endure Brexit.

But, that aside, my point is that, for all that the vote on the Windsor Framework may betoken that we have passed the high-water mark of Brexiter extremism in parliament and government policy, it has metastasized into something wider or more general, but which retains Brexit as its primary point of reference. For that reason, rather than call it Conservative populism or even, taking a tip from Goodwin, the ‘new populism’, it is most apt to call it Brexitism.

That joke isn’t funny any more

For particular example, the biggest political news story this week has been Boris Johnson’s appearance before the Privileges Committee to assess whether he knowingly misled the House of Commons over infringements of the Covid rules. This has nothing to do with Brexit, except in the indirect sense that both relate to Johnson’s pathological dishonesty, and that Johnson might well never have become Prime Minister but for Brexit (and certainly only supported it in the hope that would be the consequence).

Yet the omnipresent Rees-Mogg was at pains to represent the hearing as the work of “the haters of Brexit”, despite the Committee containing four Tory MPs of whom at least one, Bernard Jenkin, is one of the most Ultra of Brexit Ultras. Indeed it turned out, as Martin Kettle noted, that “the unexpected star turn here was Sir Bernard Jenkin, a Conservative MP whose Brexit credentials are unchallengeable, who quietly carved Johnson’s evidence into pieces, leaving him spluttering and humiliated”. Perhaps Jenkin will now join Baker in the ranks of ‘crypto-remainers’, Jacobins turned Girondins.

Rees-Mogg’s attempt to discredit the process reveals his grating hypocrisy, seen also in his role in the illegal 2019 prorogation, since he so often affects to represent himself as the voice, an unctuous and preposterous voice admittedly, of parliamentary traditionalism. For, as Hannah White of the Institute for Government explains, the significance of the hearing is far less about Johnson’s future than it is about protecting the vital constitutional importance of ministerial accountability. But it also shows how Brexit continues to be the cornerstone of British populism, for all that it has ceased to have majority support. It is the talisman of Brexitism.

And, in fact, the hypocrisy and the role of Brexit in populism are linked. For the Brexit Ultras, no perversion of parliamentary rules and norms was too great if it delivered ‘the will of the people’. In that context, Johnson’s ‘anti-ruleism’ made him their ideal leader. But as I argued at length at the time, ‘Partygate’ exposed the risks and fragility of populism by opening a chasm between ‘ordinary people’ and their supposedly anti-elitist leaders. So it will be fitting if it is his lies over this, rather than all his other lies, which finally end Johnson’s political career. And it will be a fitting irony if, as argued by (£) the ferociously pro-Brexit Associate Editor of the Daily Telegraph, Camilla Tominey, the ‘implosion’ of “the cult of Boris” is taken by association to mean the implosion of “his Brexit dream”.

Still ill

For the reality, of course, is that the “dream” has imploded quite independently of Johnson. It collapsed under the weight of its repeated encounters with reality. For that matter, even if, under Sunak, government policy is becoming more pragmatic about Brexit, that does nothing at all to stop the continuing damage Brexit is causing, damage still being assiduously charted by Yorkshire Bylines’ Davis Downside Dossier. At best, it means ceasing to add new damages on top of the existing ones.

Discussing those damages is still largely taboo for both the Tory and Labour parties but, to coin a phrase, the people have spoken, at least to the extent of successfully petitioning parliament to debate a call for the government to hold a public inquiry into the impact of Brexit. The debate will be held on 24 April, and whilst little can be expected as a result it is at least something that Brexit will actually be discussed and not treated as an embarrassing medical condition that shouldn’t be mentioned in public. The Brexit fever may have broken, but the nation is still ill.

 

Afterword

In case you missed it, I wrote an extra post this week, reviewing two recent Brexit books – The Parliamentary Battle over Brexit by Meg Russell and Lisa James, and Inside the Deal. How the EU Got Brexit Done by Stefaan De Rynck.