The scandal of the settlement scheme for EU citizens

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

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

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

The emerging EUSS scandal

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

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

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

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

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

The origins of the scandal

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

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

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

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

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

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

Parallels between the Post Office and EUSS scandals

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

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

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

Where are the Brexiters?

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

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

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

Why it matters

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

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

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

Uncomfortable lessons

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

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

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

How do these lessons apply to Brexit?

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

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

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

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

The Brexit self-punishment machine

It’s tempting to ignore the government’s announcement, made in the doldrums between Christmas and the New Year, that it is to become legal to sell wine and champagne in pint bottles. It seems such a silly piece of fluff designed either to trigger remainer jeers or leaver cheers, and so it’s better not to rise to the bait. Yet on closer inspection it has more significance than that.

It certainly wasn’t ignored as fluff by Business Minister Kevin Hollinrake, who was moved to tweet that “this will help support businesses and grow the economy”, whilst the Mail celebrated it as an example of “post-Brexit freedoms” from what the Sun called the “Brussels killjoys”. For this reason alone, it’s worth discussing as an antidote to the still active, albeit increasingly risible, Brexit lie factory.

Myths about myths … built on myths

As with most Brexit stories, there is much which is obscure and convoluted, starting with whether pints of champagne were ever on sale and if so when. Without exception, every news report of this made mention of Churchill having supposedly favoured champagne pints, as if they rank with the Spitfire, or Vera Lynn singing of the white cliffs of Dover, in the endless mythologization of the Second World War that so pervades and deforms Brexity folklore. That Churchill did so was confirmed by a 2018 BBC interview with Hubert de Billy, the head of the Pol Roger company that supplied it. But it does not follow that the practice was widespread, and in that interview (which also features Brexit dunderhead ‘Sir’ Tim Martin getting all moist about Churchill), de Billy also explains that this bottle size was already dying out from the 1940s.

Meanwhile, Simon Berry, Chairman of Berry Bros and Rudd wine importers, a keen Brexiter who has campaigned for the re-introduction of champagne pints, mentions that the Conservative politician and diplomat Duff Cooper was bemoaning its demise as early as the First World War, and Berry’s own campaign started in the 1970s. At all events, it is unclear whether pints were ever available on the shelves of British shops, as opposed to direct supply, and, however supplied, it seems as if they had disappeared well before Britain joined the EU. So the whole idea of this being some fabled British tradition killed off by Brussels is a myth.

The government’s announcement implicitly acknowledged this, with the press release being titled “’Pints’ of wine stocked on Britain’s shelves for the first time ever” (emphasis added), making it clear that it is not the restoration of a pre-EU ‘freedom’ but a novelty. That press release title contains another implication, in its use of speech marks around the word ‘pints’, for, as the text of the release makes clear, what will be permitted are 568 ml bottles – in other words, a metric measure (the other new provisions are that both still and sparkling wine can be sold in 200 ml and 500 ml containers, whereas, currently, still wine cannot be sold in 200 ml and sparkling wine cannot be sold in 500 ml).

So, not only is this not a return to previous customs, it isn’t an end to even a single case of the use of metric measurements. It may well be that these 568 ml bottles – if they are ever produced, which I’ll return to – will also say on them ‘one imperial pint’, but this just opens the door to more myths.

Although the idea of champagne pints as a Brexit benefit has never been widespread – the Berry interview from August 2016, referenced above, is the first mention of it I can find – that of the restoration of imperial units of measurement has a much longer and deeper significance going back to the 2002 ‘Metric Martyrs’ prosecutions, to the extent that these are seen by some as the ultimate origin of Brexit. One myth in play here is that metrication was something imposed on the UK by the EU, whereas in fact it was a process which had begun long before joining, and the Metric Martyrs case arose within a confused mélange of EU and domestic law. A second myth is that metrication made it illegal to use imperial measures, whereas in fact it only prohibited the use of those measures alone, without also displaying their metric equivalent more prominently (it was for refusing to do this that the ‘Metric Martyrs’ were prosecuted and, in some cases, convicted). In this sense, the fact that 568 ml bottles of champagne will be permitted to also be marked as imperial pints represents no change at all.

The will of the people

Building on these myths, ever since the referendum the idea of restoring imperial units of measurement has regularly been dangled in front of leave voters, almost half of whom supported it according to a 2017 opinion poll*. It featured in Iain Duncan Smith’s TIGGR review in May 2021 and again in the government’s January 2022 ‘Benefits of Brexit’ report. Then, to coincide with the late Queen’s Platinum Jubilee, Boris Johnson announced that there would be a public consultation exercise on the matter, enthusiastically overseen by Jacob Rees-Mogg, holder of the now defunct post of Minister for Brexit Opportunities. It’s of note that even some of those who reacted to that announcement with enthusiasm were confused about what was at stake, with one market trader appearing to think it was to do with the use of decimal currency.

The consultation was launched in June 2022 and concluded in August 2022, and the results were supposed to have been announced in November 2022. However, little was then heard about it until now when, in fact, the substance of what was announced in the ‘pints of wine’ press release was the outcome of that consultation. It was presumably headlined in that way so as to distract attention from the embarrassment of what that outcome consisted of, and this probably also explains the obscure timing of the announcement. For, as anyone might have known without going to the wasted expense – the kind of waste which Rees-Mogg, who at the time was also the Minister for ‘government efficiency’, himself so often castigated – it reveals that the public regard the idea as a complete dud.

Thus, despite using a survey design widely criticized as flawed and  biased towards garnering support for the use of imperial units, of the over 100,000 responses to the consultation 98.7% were in favour of continuing to use metric measurements, whilst an utterly miserable 0.4% favoured returning to imperial units only. As a result, even this government has finally realized the game is up, and although the unteachable Rees-Mogg continues to moan (£) that this is an example of “government of the bureaucrat, by the bureaucrat, for the bureaucrat”, it is rather more obviously a case where ‘the will of the people’ is abundantly clear. Indeed, what would Rees-Mogg have the bureaucrats do? Impose imperial measures on a population almost unanimously opposed to them?

Others were more ebullient, none more than the ever-peculiar Mail columnist Peter Hitchens who rejoiced at this “blow against the metric commissars”, apparently not grasping that the only thing that has been achieved is to allow bottles of a distinctly metric 568 ml. In calling for an official pardon for the original Metric Martyr, Steve Thoburn, Hitchens also seems to have missed the fundamental point, that nothing about metrication has actually changed. Former Brexit Minister and ERG hardliner David Jones was equally easily gulled, welcoming the champagne pint but calling on the government to “go the whole hog and allow people the freedom to use imperial measures if they wish” as if the horse he is still flogging had not now been definitively pronounced as dead by this announcement.

Taking everything together, then, this is a dismally instructive story, enfolding generalized myths about the second world war and specific myths about champagne bottles, metrication, and the supposed outlawing of imperial units, stirred in with the faux-victimhood of martyrdom. Layered on this are the silly Brexit boosterism of Boris Johnson and the laboured antiquarianism of Jacob Rees-Mogg, all topped off with the disingenuity of the manner in which the whole stupid episode has finally been laid to rest. Even treated as no more than a symbol of Brexit, that makes it revealing. But there is more to it than that.

The power of size and the size of power

When Hollinrake was challenged on X-Twitter about his claim that wine pints would help businesses and economic growth he rowed back slightly, saying that “No-one is claiming this is some kind of economic game changer, just one of many incremental improvements across the business landscape that add up to £bns of benefits” and linking, presumably in support of this claim, an article from The Drinks Business, although, in fact, the article suggests that  champagne and sparkling wine producers have no plans to produce pint bottles.

That was published in February 2022, so it could be argued that the latest announcement will spur a change, but it is unlikely to be extensive. Non-UK producers have little incentive to take on the extra costs of producing pint bottles, since they will probably only be sellable in the UK (or, possibly, though I am not sure, only in Great Britain). It’s true that the UK is quite a large market – for champagne, specifically, it is the sixth largest importer by volume in the world, though, even within the EU, the Netherlands imports more – but it’s unlikely that it can be much expanded by a pint product. Perhaps some will think this worthwhile – Pol Roger, with the ‘Churchill’ association, might find it viable to produce a niche, super-premium product, and there may be others. Equally, some UK producers might create a pint product for the domestic market, though the early indications are that they will not.

In short, for the most part, wine producers in both the UK and elsewhere will continue to conform to the established global norm, including the US, of the 75cl (750 ml) bottle. It is worth reflecting on why this is the norm. Hitchens’ article actually touches on it when he notes that it is “because that is the size of bottle most people like. And — because we in Britain have always been such good customers for European wine — it is based on an old English wine measure, of roughly a pint and a third, known amusingly as . . . a 'Bottle'.” This explanation is partly based, as with some other examples in the article, on the idea that ye olde Englishe measurements are somehow ‘natural’, and so “what most people like”. But the more substantive point is the allusion to the historic importance of the British market.

Specifically, according to almost all sources, at a time when most wine was consumed in its country of origin, the main export market for French producers, especially those of Bordeaux, was Britain. The wine was shipped in barrels and, since the British measured in gallons and the French in litres, in the nineteenth century the practice emerged whereby barrels of 50 gallons or 225 litres were used, thus yielding 300 bottles of 75 cl each (clearly this is compatible with Hitchens’ account, as there are eight pints in a gallon, yielding six bottles of a pint and third, although I can find no other reference to such bottles being a traditional English measure). This 75 cl bottle size eventually became a European, and later a global, norm.

That was then, but this is now

So this is a story about the market power of Britain when it was the wealthiest country in the world and (probably) the biggest importer of wine. It could, effectively, set the standard even of a product it scarcely produced itself. This is no longer true, and, in endless different versions, that fact lies at the heart of almost everything which is happening to regulation in post-Brexit Britain. Britain has, in theory, ‘taken back control’ of the laws and regulations that govern it. In practice, it has virtually no power to do so without imposing exorbitant costs upon its already ailing economy. There may be the odd exception but generally, as Joel Reland of UK in a Changing Europe has explained, “non-divergence [from the EU] is the new consensus in British politics”.

That in itself might be enough to show the fatuity of Brexit. All that effort and expense, and the outcome is not just to stay aligned with the EU but to actually lose all control over its decisions. But the reality is worse than that. For if ‘staying aligned’ demolishes the central argument made for Brexit by its advocates, it still does relatively little to allay the costs of Brexit: Britain is aligned with single market rules, which is certainly less costly than diverging, but does not get most of the benefit of that in terms of single market membership.

What makes the single market function as such is not just shared standards but a shared system of registering, certifying, and enforcing those standards so as to remove the regulatory borders between the countries who are members of that market. Aligning standards is a necessary condition for accessing the single market, and avoids the costs of producing to dual standards, but it is not sufficient to enjoy the benefits of single market membership which entail what Michel Barnier frequently described as the EU’s “common ecosystem of rules, supervision and enforcement mechanisms”.

It is an issue which is about come to the fore again when the UK finally begins to implement full import controls on goods coming from the EU at the end of this month (unless there is a sixth delay in doing so). Why bother, if the standards are the same? Because it’s not just about the standards, it’s about the systems for ensuring and demonstrating those standards are met (it’s exactly the same issue, in reverse, which explains why the ‘Not for EU’ labelling now appearing in the UK doesn’t tell us anything about the standards to which the products so marked are made). Outside of the single market, that means border controls in some form, even if not literally ‘at the border’, which means costs and, potentially, delays.

Betwixt and between alignment and divergence

However (although, really, it is another aspect of the same basic issue) the situation of post-Brexit Britain is worse still than that of largely maintaining alignment with single market standards whilst not reaping the benefits of single market membership. What has actually been created is a situation of complete confusion because, whilst remaining largely aligned, the UK is no longer in lock-step with the EU (except for goods in Northern Ireland). It’s not just that in some relatively minor ways the UK has chosen to diverge from the EU, it is that EU regulations themselves are constantly changing, but with no UK commitment to track them (or to be bound by any disputes arising from them) or any process to do so, or even the state capacity to create such a process.

One consequence of this is that much of the burden of compliance falls on individual firms and their trade associations, which must try to keep abreast of EU changes and to comply with them. Because these changes are ongoing, it means that, as William Bain, Head of Trade Policy at the British Chambers of Commerce explained recently, it is a burden that is growing rather than being “a static mechanism” of one-off adjustment to Brexit. Stephen Phipson, CEO of MAKE UK, has a similar message: “we don’t have the regulatory capacity to keep up: it’s not intentional but we’re lagging behind”. That same report shows how the government does not even have a consistent or logical approach, so that, having dropped the general requirement on UK firms to adopt the UKCA mark rather than continuing to use CE, the construction sector is still supposed to do so by 2025. Perhaps, even probably, that, too, will end up being dropped but, for now, businesses in the sector are obliged to continue to prepare for it.

The same basic problem of having to align with the EU, for economic reasons, whilst having refused, for political reasons, to be in lockstep, is evident in the emerging situation with the EU Carbon Border Adjustment Mechanism (CBAM) and the associated issue of the EU Emissions Trading System (ETS). It is a complicated story, but in very brief the UK is set to create its own CBAM on similar lines to that of the EU. The UK can’t just ignore the EU because, despite having left it is directly affected by what the EU does. In this case, for example, a consequence of ignoring EU CBAM might be to end up having high-carbon steel from China dumped on the UK market.

However because the UK is not in lockstep, UK CBAM will come into force later (creating a ‘window’ for dumping) and, as things stand, without linking the UK CBAM and ETS and EU CBAM and ETS. Such linkage is something which might, in fact, be achievable via the existing Trade and Cooperation Agreement, and it is probably something that the next government, especially if it is a Labour government, will do. But even if so, the point holds: extra costs, uncertainties and complexities are incurred to no conceivable benefit or advantage, and with an outcome which in substantive terms is defined by the EU rather than the UK.

Self-punishment

Compared with these things, the champagne pint announcement may seem trivial. It will most likely be almost entirely ignored. But it is illustrative of a far bigger issue. It arises from a wholly nonsensical and imaginary idea of sovereignty, itself predicated on a nineteenth century view of Britain and the world. This creates a self-punishment machine where we pay a massive price to have a freedom to diverge which in most cases is too costly to exercise, like someone spending a fortune on a new car and then finding that, as they had been warned, there are no roads to drive it on.

It is easy to get lost in the detailed weeds of all this, and also to be distracted by the endless gaslighting from Brexiters, but the reality is straightforward, and the public are all too well aware of it: there is nothing that Brexit makes easier, cheaper or more pleasant. And it’s going to get worse, not better.

 

*The survey question asked itself confuses the issue, since it asked whether “selling goods in pounds and ounces” should be “brought back”, as if doing so had been outlawed.

Update (05/01/24: 08.50): to add extra piquancy to the mythological nature of Churchill’s ‘pints of champagne’, I’ve been alerted by David Scott to a report that these bottles were in fact 600 ml, rather than a 568 ml pint, and very rarely produced.

Update (06/01/24: 11.30): In the post I state that I was not sure whether the pint bottles of wine and champagne would be sellable across the UK, or possibly only in Great Britain. I was implying, obviously, that I was not sure whether the Northern Ireland Protocol might mean that they would not be sellable in Northern Ireland. However, John Campbell, the BBC’s Northern Ireland Business and Economics Editor, has responded, clarifying that they would be sellable in Northern Ireland, and that they would be eligible to use the ‘green lane, under the Windsor Framework.

The Brexit battles never went away, and they’ve got a long way to go

A recurrent observation – made sometimes with surprise and sometimes with a kind of perverse nostalgia - about this week’s political and parliamentary events is that it is ‘as if the Brexit battles have returned’. And it is true that, like an ageing rock band, re-formed to reprise its well-worn hits despite the much-publicized hostilities of its members, there were some all too familiar sights and sounds. Thus, as the Rwanda Bill ‘crisis vote’ approached, there were fevered speculations, briefings and counter-briefings, and crisis talks with the almost endless number of factions that make up what can still just about be called the Conservative Party.

As with such a band, it came as a slight surprise to learn that some of its members had not long ago died of self-abuse, as when the raddled features of Mark Francois emerged to announce the findings of the self-important dolts of the ERG ‘Star Chamber’, chaired by the apparently indestructible Bill Cash. The show even began in the time-honoured way with a rendition of the classic ‘cave-in of the Tory moderates’, to set the toes tapping. Francois did, however, introduce one new number, ’the Five Families’ which, it seems, refers to a grouping of some the right-wing factions which, indeed, have much in common.

The Brexit battles never went away

But the observation is wrong. It is not ‘as if the Brexit battles have returned’. They are the same battles, and they never went away, and they are explicitly seen as such by people like ‘New Conservative’ Miriam Cates. There are multiple, interwoven strands to this. One is that, as I suggested in my book on Brexit, a possible post-Brexit scenario would be a push for a Brexit 2.0 of derogation from the European Convention on Human Rights (ECHR) and, indeed, for months now, there have been growing calls from the Tory right for just that.

That scenario seemed possible not just because of the insatiability of Brexiters but because, as discussed in last week’s post, even before the referendum they conflated issues of EU membership with those of the ECHR. For that matter, it shouldn’t be forgotten that during that period, when Theresa May was still a remainer, she argued for withdrawal from the ECHR, whatever the outcome of the referendum, and that later, as Prime Minister, she vowed to fight the 2020 election (sic) on a platform of ECHR derogation (£).

It’s true that derogation isn’t what is at issue with the Rwanda Bill, which instead is an attempt to legislate to ‘disapply’ in domestic law some provisions within the ECHR, and certain other international agreements, in relation to the Rwanda policy (Dr Alice Donald and Dr Joelle Grogan of UK in a Changing Europe provide a detailed explanation of its provisions). However, some of the right-wing critics of the Bill would certainly prefer derogation, and all of them want it to go further in disapplying international law, especially in relation to whether individual appeals against trans-shipment to Rwanda would be allowable. In this sense, they are indeed pushing for a Brexit 2.0 scenario.

Closely inter-twined with that is the issue of whether the current Bill itself threatens to break international law. The government claims that it is framed in a way which stays just short of that, and this is the basis on which the ‘moderates’ of the One Nation group backed it. However, the UK Parliament’s Joint Committee on Human Rights issued a statement this week arguing that, even as drafted, it already breaches international law, a view endorsed by Professor Mark Elliot of Cambridge University, a leading authority in this area. In flirting with violating international law, or even actually doing so, the Rwanda Bill again represents a continuation, rather than a re-appearance, of something that began with Brexit. For it was not until the Internal Market Bill (IMB) of September 2020, which threatened to break some provisions in the Northern Ireland Protocol (NIP), that any British Minister had proposed legislation which would self-avowedly break international law.

The two aspects of Brexit nihilism

That threat arose again, with the Northern Ireland Protocol Bill in 2022, and although, in both cases, it did not actually happen, it shows how Brexit, specifically, has proved the catalyst for an almost nihilistic frenzy on the political right. One aspect of that is a kind of Jacobinism in which no measure is too extreme if it delivers Brexit, whether the price be the economic one of ‘no deal Brexit’ or the reputational one of reneging on international agreements. From quite early in the Brexit process, and especially once Boris Johnson came to power, international pariahdom seemed to matter not at all to the Brexiters. It is now abundantly clear that he signed the NIP without intending to honour it, and that many Brexiters who voted for it in parliament did so in the expectation that it would not be honoured.

A second aspect of this nihilism, related but slightly different, is a doctrinaire and wholly absurd idea of parliamentary sovereignty, within which international law is not just something that can be ignored but something which is actually meaningless. On this argument, which has been foregrounded again in relation to the Rwanda Bill (£), because parliament is sovereign it cannot be bound or constrained by anything else. At the time of the IMB proposals, this ludicrous argument was actually endorsed by the then Attorney General Suella Braverman.

That it is ludicrous was explained at that time, again by Mark Elliott, and, now, he has written of the Rwanda Bill that:

“it proceeds on the basis of the sleight of hand that the UK Parliament, because it is sovereign, can somehow free the Government from its international legal obligations. But this is to conflate the sovereignty of the UK Parliament in domestic law with the UK’s sovereignty on the international plane as a State. It is precisely in exercise of its State sovereignty that the UK can enter, and has entered, into binding treaty obligations.”

At its extreme, this idea of parliamentary sovereignty leaves no constitutional place for domestic courts, let alone international ones (actually, at its most extreme, as noted in my last post and amplified by Ian Dunt’s Substack, it proposes that parliament is sovereign over reality itself).

It is important to understand that these are not arcane points of legal or political theory. They have a crucial practical importance. For one thing, the UK is hardly in a position to call on other states, be it China, Russia or Israel, to act within international law and to respect human rights if its position is that sovereignty allows every country to do whatever it wants. For another, the UK is hardly an attractive partner for other countries to strike deals with, whether about trade or, even, asylum processing, if it reserves the right to violate those deals. And, for a third, which should matter to everyone, this doctrine makes it possible that parliament might act to remove any and every right from any or all of us, with no recourse to any court. It is precisely to constrain that possibility that we need the principle that there are some laws and rights that transcend the power of nation states.

It may seem as if these two aspects of Brexitist nihilism – the ‘Jacobin’ ruthlessness that the end justifies the means, and the ‘sovereigntist’ idea that parliament is unconstrained – are the same. But the reason I said they are ‘slightly different’ is because at times they contradict each other, even though they are often espoused by the same people.

Specifically, throughout the Brexit process, the idea of the ‘will of the people’ was often claimed by Brexiters to mean that sovereignty lay, indeed, with ‘the people’, and the constant accusation was that parliament was improperly ‘thwarting’ this will. But, if parliament is sovereign, how could there be anything improper in this (even assuming that was what parliament was doing)?  Moreover, the most extreme example of the Jacobin aspect was when Boris Johnson and his minions unlawfully prorogued parliament showing, in fact, utter contempt for parliamentary sovereignty. For, remember, their specific objection was to the way that parliament itself was passing legislation like the Benn Act (to prevent no-deal Brexit) in defiance of the Executive.

More generally, Brexit has been used as a pretext to sideline parliament, for example through the burgeoning use of ‘Henry VIII powers’ and, of course, but for the first Gina Miller case, parliament would not have had a vote on triggering Article 50. As with prorogation, it was only the courts which acted to constrain political power and, in these cases, to constrain the power not of parliament but of the Executive.

Rwanda Bill: Brexitism won the day without winning the vote    

In short Brexit nihilism is ludicrous in theory, dangerous in practice, and incoherent in both theory and practice. But it hasn’t just re-emerged for an encore with the Rwanda Bill. It is embedded in British politics. That is most obviously the case with the Tory Party which, as I wrote a couple of months ago, has been driven mad by Brexit. Even longer ago, in August 2022 when the Tories were engaged in choosing their new leader, who subsequently turned out to be Liz Truss, I made the point, which has become almost a cliché since then, that the Tory Party had become ‘unleadable’.

That had been only temporarily masked by Boris Johnson’s 2019 election victory. It gave the government a substantial majority – albeit one now whittled away to 56 by by-election losses and expulsions – but, actually, apart from the very early vote to pass the Withdrawal Agreement that ‘got Brexit done’ (sic), it was always a fragile majority, and factionalism and infighting were never far from the surface. Then, following the Truss implosion, Rishi Sunak briefly had enough control over the Brexit Ultras to squash the rebellion over his Windsor Framework, which at one stage threatened to muster more than 100 rebels but in the end fizzled out. At that time, I, like others, wondered if Britain’s Brexit fever had finally broken.

That has proved not to be the case. Although Sunak also won this week’s Rwanda Bill vote, with many of the ‘five families’ abstaining rather than voting against, the circumstances are very different to the Windsor Framework vote. For one thing, this is only the beginning of a legislative process which, assuming House of Lords opposition, has no realistic chance of being completed before the next election. There are plenty more votes on possible amendments to come which the rebels may win.

For another, even though the Brexitists want to make the legislation even ‘harder’, its existence even in its current form shows the extent to which their ideology has captured “the soul of the Conservative Party”. A rather naïve column from Iain Martin in the Times (£) suggested that what happened this week was that the “moderate MPs” who form “the bulk of the parliamentary party” had shown how marginal the “fundamentalist Brexiteers” have become. What that misses is just how immoderate the entire party has become, so that what would once have been an extreme position is now mainstream.

Because this wasn’t Sunak ‘the pragmatist’ of the Windsor Framework, temporarily putting the Ultras back in their box. It was Sunak, with the support of the ‘moderates’, making as one of his central priorities an unworkable, immoral, and probably illegal populist policy, that began with Johnson, and finding that, as always, the Ultras want more. It doesn’t even matter if they don’t get that from Sunak now since, as Robert Shrimsley astutely pointed out this week, it will just be grist to their post-election mill that his government failed by not being ‘pure’ enough in its Conservatism.

Where is the Tory Party heading?

But the Tory Party is really no longer discussable without reference to Reform and Nigel Farage. Clearly that has been true for a while, going right back to UKIP and the roots of the referendum. It was certainly obvious at the last election, when Farage stood down from fighting most Tory-held seats. Now, the two are inseparable, both at the level of electoral fortunes and, perhaps more importantly, because there is no discernible ideological difference between Reform and most of – if we must call them so – the ‘five families’.

That’s especially so for the New Conservatives and National Conservatives, and there’s almost a sense – or am I imagining it? – that the ERG now seems slightly dated and quaintly respectable by comparison with this new breed of Tory rightwingers. Bill Cash may be many things, but he isn’t a Jonathan Gullis or a Lee Anderson. Even Francois is more ludicrous than sinister. It’s a bit like the way that ‘old school’ gangland bosses like the Krays were displaced by even more ruthlessly violent psychopaths. Say what you like about the ERG, but at least they looked after their own and loved their dear old mum, so to speak.

At all events, there’s no doubt the direction the Tories are heading in, at least in the short-term, assuming they lose the next election (and it’s telling that an ambitious one-time ‘moderate’ like Robert Jenrick is now re-positioning himself in anticipation of this direction). Even if Martin was right that there are still ‘moderates’ in the parliamentary party, it is undeniable that the membership, which will choose its next leader, is far from moderate. The Johnson-Farage dream ticket may just be a dream (or, perhaps, a nightmare), but the fact that anyone would even float such an idea, or that others pine for a Liz Truss comeback, shows the madness that is in the air. We may even see a complete re-alignment of the British Right, drawing in Reform but excluding what has previously been understood as Conservative traditionalism (for all that such an alignment would claim to be one towards ‘true Conservatism’), with it becoming the Brexitist Party in all but name.

Such a party, perhaps more likely led by one of the NewCons like Cates rather than one of the more familiar throwbacks like Braverman, and endorsed if not joined by Farage, would campaign not just on draconian anti-immigration policies but also on derogating from the ECHR and, very likely, reneging on the NIP.  This might doom the right to electoral irrelevance, but that certainly can’t be assumed, especially after the Brexit vote, even if the 2024 election sees a virtual Tory wipe-out. There is probably bedrock support of around 25%-30% of the electorate for such a Brexitist or NatCon party, augmented by some who habitually don’t vote and others who, after a few years of a Labour government, come to think that any kind of change, and any kind of ‘kick to the Establishment’ is justified.

That could create an electoral coalition similar to that which Vote Leave constructed, and, unlike then, it might only need, say, 40% of the vote rather than 50% to win an election, and it would have vociferous support from many sections of the media. Even if it only came close to winning, that might cement a NatCon takeover of the party for another electoral cycle, and for so long as it wasn’t in power then the many internal contradictions of its likely economic programme, which Times columnist Danny Finkelstein identified this week, could be glossed over. Indeed, as with UKIP and Brexiters in general, such a party could be far more effective and influential as a campaigning protest movement than as a government.

The Brexit battle to come

This is just speculation. But, assuming it has any plausibility at all, it is highly relevant speculation at least in relation to what will undoubtedly be continuing debate about re-joining the EU or the single market. That was given new impetus this week by a widely-discussed article by Martin Wolf in the Financial Times suggesting re-joining is highly unlikely any time soon, if ever. Other views are available, of course. But my point here, and of course I and many others have made it many times, is that for as long as there is a feasible scenario in which an incoming British government would seek to overturn any version of re-joining which might have occurred, such re-joining would never be countenanced by the EU. In this sense, the political battle for ‘anti-Brexiters’ for the time being is not to re-join, or even to try to persuade Labour to have a re-join policy, but to expunge Brexitism from British politics, or at least confine it to the margins.

Clearly things may play out differently. Even Wolf acknowledges the possibility that, say, a re-elected Trump pulling the US out of NATO would create such a geo-political shock that all bets would be off. So, too, might something as yet completely unforeseen, and perhaps (even) worse. But it would seem foolhardy, and even more pessimistic than Wolf himself, to work on that assumption when the scenario I have described is, for the time being, the more likely one.

On that cheery note, I’m signing off for Christmas and the New Year (unless something big happens). Many thanks to all who have read and publicized the blog this year and, in more recent months, left comments. I nearly decided to give up on it when I reached the seven-year mark, but here we still are. I’ll re-start early in 2024.

 

If you are stuck for a Christmas present for someone, why not buy them a copy of the updated edition of my book Brexit Unfolded. How no one got what they wanted (and why they were never going to), published by Biteback in September 2023?

Immigration and asylum rows are another sign of Brexit’s total failure

One of the reasons why there is still any debate about whether Brexit is a success or a failure is because what Brexit meant and what it was supposed to achieve were so obscure, and were made deliberately obscure by those who campaigned for it. The two things are linked, of course: there is no checklist against which we can evaluate Brexit as a policy because it was only by allowing Brexit to have multiple meanings that enough people could be persuaded to vote for it.

The fact that winning the referendum was only possible by not defining what was being voted for lies at the heart of almost all the trauma that has followed, most especially the protracted political agony over agreeing what it was going to mean in practice. This week, that was vividly illustrated by the government’s panicky new tightening of immigration criteria in response to the latest annual net migration figures and, then, by the latest, still ongoing, twists in its ‘Rwanda policy’ fiasco. But before coming to these events, it’s worth thinking about what preceded them.

Immigration control: a Brexit promise kept?

For well over a year now, Professor Jonathan Portes, one of the leading experts on the economics of migration, has been making the point that immigration policy is one of the very few areas where Brexit has delivered its promises. What he meant was that Vote Leave, unlike successive Tory governments, had never proposed any particular level or limit for immigration. Brexit had simply promised to give the UK control over setting the criteria for the entirety of its immigration policy, rather than just over immigration from non-EU countries, thus deciding for itself how many and what type of immigrants it needed. Wasn’t this exactly what Brexiters, including Nigel Farage, had demanded for years when championing an ‘Aussie-style points-based system’?

So here it was, and what it turned out to mean was just as high, or even higher, levels of immigration than before Brexit. And that was driven by choice and necessity. To give one important example, when the UK began setting its own immigration policy at the end of the Transition Period, it initially only allowed ‘senior care workers’ to be eligible for work visas. Then, in response to the worsening crisis in staffing social care, in February 2022 eligibility was extended to all grades of care workers. This, and the, on average, one dependant each care worker brought with them, was one of the main drivers of the high number of work-related visas issued in the latest figures. But it didn’t happen through carelessness or ‘losing control of our borders’: as with the rest of the work visa system, it happened as a deliberate choice in the face of a pressing need.

Post-Brexit control of immigration is not just about numbers. It has also meant a major change in the composition of immigration in that it is now much more heavily weighted towards non-EU countries than before. That, too, was in line with what Brexiters had called for and promised, including, again, Nigel Farage, when they fulminated against the unfairness of the situation where it was far easier for an EU citizen to work and live in the UK than for those from elsewhere in the world, especially the Commonwealth countries.

Indeed one strand of the leave campaign was aimed directly at minority ethnic groups, raising the grievance that their relatives faced so many hurdles in joining them whereas EU citizens faced, effectively, none. Thus the Vote Leave campaign produced leaflets (£) in Punjabi, Urdu and Hindi urging that leaving the EU “would help to stem the flow of Eastern Europeans into the UK – allowing more incomers from Commonwealth countries to take their place”. Some Brexiters, such as the Tory MP Daniel Kawczynski, even argued that EU Freedom of Movement rules were “racist”, and that “whether Indian or Romanian you should be treated the same”.

Or a Brexit promise broken?

So, in all of these ways, Portes and others have been quite justified in saying that Brexit really has delivered on its promises about immigration. But, of course, as they are no doubt well aware, they are also being cute. For there can be no doubt that many, perhaps even most, leave voters wanted and expected Brexit to mean immigration levels would reduce, and that by ‘control of our borders’ they meant, and thought Brexit campaigners meant, control in order to reduce immigration, not simply control regardless of how it was used.

Since the referendum, some Brexiters, including Boris Johnson, have sought to claim that immigration wasn’t really at issue, so much as the ‘principle’ of sovereignty. However, polls immediately after the referendum showed, yes, that for 49% of leave voters “the principle that decisions about the UK should be taken in the UK” (which can be taken to mean ‘sovereignty’) was their main motivation, but, even so, immigration control was the main motivation for 33% of them. In any case, the two motivations are likely to be intimately associated, with ‘sovereignty’, at least for some, likely to be mainly about, or at least to include, border control. Whatever may now be said, sovereignty was not an abstract principle but seen as a means to enact certain policies, including reducing immigration.

In all, it is hard to deny that many leavers, and surely enough of them to have made a decisive difference to the referendum outcome, thought, like this voter from Barnsley interviewed by Channel 4 News the day afterwards, that: “It’s all about immigration. It’s not about trade, or Europe, or anything like that. It’s all about immigration”. What may have been less common, but surely not that unusual, is what he went on to say, which caused the clip to attract much attention and some mockery: “It’s to stop Muslims coming into this country. It’s as simple as that”. He then went on: “The movement of people in Europe, fair enough but not from Africa, Syria, Iraq or anywhere else.”

There’s a lot to unpack in that, including the way it appears to approve of EU freedom of movement and, at least, the implication that, although immigrants from the EU might well be Muslims and those from outside the EU might well not be, this kind of voter is probably not likely to see the post-Brexit increase in non-EU immigration as having delivered what he wanted from Brexit. That would be consistent with research data showing that all voters, whether leave or remain, and regardless of social class or age, are more positive about EU immigrants than non-EU immigrants. Or, let’s be blunt, voters like ‘Barnsley man’ object far more to black and brown immigrants than they do to white immigrants.

Beyond that, there is a clear implication that for him, and it is hard to believe he was unusual in this respect, the issue of immigration was bound up with, and perhaps identical to, that of refugees and asylum seekers. If so, it is hardly surprising since the (unofficial) Leave.EU campaign, most notoriously with Farage’s ‘Breaking Point’ poster, deliberately and explicitly conflated these issues. But so, too, did the supposedly more ‘respectable’ Vote Leave campaign, even if in more ‘genteel’ terms.

Thus just before the referendum Boris Johnson issued a statement which began by waxing lyrical about how “pro-immigration” he was but – whenever Brexiters say something positive about immigration it’s always the prelude to a ‘but’ – bemoaning freedom of movement, along with the claim that “the rogue European Court now controls not just immigration policy but how we implement asylum policy under the Charter of Fundamental Rights”. Like the Barnsley voter, he even mentions Syria and Iraq, in an implicit reference to the supposed possibility of Turkish accession to the EU.

The conflation of immigration and asylum

Against this background, what is happening with immigration policy now is hardly surprising. It may have seemed that Brexit had largely removed immigration from public concern and political attention. Between June 2015 and July 2016 ‘Immigration and Asylum’ topped the public’s list of the three most important issues facing the country, peaking at 71% in September 2015 – presumably in response to the European ‘migrant crisis’ – and still 56% at the time of the referendum. It then steadily fell to being named by just 14% as a top-three issue in April 2020 before gradually rising again so that 40% now see it as a top-three issue, the highest score apart from ‘the economy’ and ‘health’.

But even that survey question is part of the problem. Immigration and asylum are not the same thing, and if they are conflated in the public mind then it is because they are conflated by political leaders. Not only that, but it is highly likely that growing public perception of ‘Immigration and Asylum’ being a problem issue is to do with the further conflation between asylum-seeking and ‘illegal’ (i.e., irregular) asylum-seeking, and especially the ‘small boats’, which itself is different from, though often conflated with, ‘illegal immigration’.

Matters are further confused, and public understanding confounded, by the way that the headline figures for immigration agglomerate the numbers for work visas and their dependants, student visas and their dependants, asylum seekers and, which is different again, refugees. Indeed, one reason for the recent spike in aggregate figures is the arrival of those fleeing war in Ukraine and tyranny in Hong Kong, something which has strong public support and also contributes to advancing the UK’s geo-political interests.

It is in this sense that this week’s government clampdown on immigration was panicky. Far from being a calm, rational assessment by a sovereign nation of what controls are needed in the national interest, economic and otherwise – the supposed promise of Brexit Global Britain – it was a rushed botch driven by Sunak’s fear of the Reform Party vote and of his NatCon backbenchers.

The result is a ‘five-point plan’ (is there any other sort?) which will hobble British businesses, damage the ‘world-class universities’ the Tories so often boast of and which are themselves one of the country’s most successful service exporters, exacerbate the crisis in social care, and, most cruelly of all, make international marriages something only available to the well-off (though the latter seems so badly thought out it’s quite likely to be dropped). What makes this plan all the more lamentable is that, for all the damage it will do, it almost certainly won’t even deliver a fillip to the Tory standing in the opinion polls. Within hours, Richard Tice, the notional leader of Farage’s Reform Party company, had denounced it, with yawn-inducing predictability, as a “betrayal” (£).

It certainly won’t slake the unquenchable thirst of the Tory populists for even tighter immigration controls, and for derogation from the European Convention on Human Rights (ECHR) and, again, that was set up by the dishonesty of the Brexit campaign. For, in advocating freedom from, as Johnson put it, “the rogue European Court”, the Brexiters deliberately conflated the European Court of Justice (ECJ) with the European Court of Human Rights (ECtHR), which adjudicates the ECHR, and is quite separate from the EU. Certainly, prior to the referendum, every single time I heard leave-inclined voters give an example of EU Courts or EU law over-riding Britain’s Parliament or legal system it was something relating to the ECHR and ECtHR (and, often, some garbled version of it, such as that illegal immigrants couldn’t be deported if they had a pet cat).

Brexit pain with no Brexit gain

So we’ve gone through all the pain of Brexit, which was supposed to settle the immigration issue, for this – well, what should we call it? Grotesque stupidity and vileness are as good words as any. The tragedy is that in the process we have lost EU freedom of movement (FOM), and it is a tragedy which has many parts. One is simply economic. FOM is a highly flexible, non-bureaucratic way of matching jobs and workers. But FOM did so much more than that, enabling study, retirement, and romantic and family relationships. This meant that FOM wasn’t just an economic exchange, which ought to matter especially to those who profess to be concerned that immigration damages ‘community cohesion’.

We lost all this partly because of the conflation of FOM with asylum seekers and refugees, and partly for two deeper, and deeply related, reasons. One was the persistent failure of Brexiters to understand the difference between the Single Market and a Free Trade Agreement. In brief, this meant that they thought that FOM was just some kind of ‘ideological’ add-on by the EU, whereas in fact it is a central and irreducible component, making the four freedoms of the single market indivisible. Indeed, this failure of understanding was not confined to Brexiters, as shown by an interesting insider account of the referendum campaign, written by Daniel Korski, formerly Deputy Director of David Cameron’s Policy Unit. He records the frustration during the pre-referendum re-negotiation with the EU:   

“Nor would our counterparts in Europe acknowledge that the EU’s four freedoms are very much divisible. A country can reduce tariffs and remove trade barriers and still maintain restrictions on which foreigners are allowed to enter the country. This is what the United States has done since World War II, with NAFTA being the best example.” 

This ignorance came in time to inform the fantasy that a Free Trade Agreement could be a substitute for single market membership, but it had another consequence. Understood as a single market, it makes no more sense to talk about immigration between member countries than it does to do so between counties in Britain. This was alluded to by Sir Ivan Rogers in his February 2017 evidence to the House of Commons Exiting the EU Committee (p.10): 

“They [the rest of the EU] genuinely do not understand a UK debate in which the two are conflated at all. They do not understand why a government would have a migration target covering migration from within the European Union, which for other people is not migration. They do not call it migration; they do not call it immigration. They call it free movement… [t]hey said, “But one is migration, which is external to the European Union, and the other is free movement of people, which is not at all the same thing.” 

These two aspects of failing to understand the meaning of a single market are linked in resting on a simplistic understanding of borders. In relation to trade, that led to seeing the elimination of tariffs, rather than cross-border regulation, as being the main issue, and an associated mental model of trade as the one-time movement of finished goods from one country to another, thus ignoring modern cross-border supply chains as well as services trade. Similarly, immigration was seen as being a kind of mechanistic one-time move from living in one country to another, as well as being a solely economic transaction.

In fact, although freedom of movement of workers has been a concept going back to the original provisions of the 1957 Treaty of Rome, and is very much associated with what was the common market, it has evolved to become a freedom of movement of persons for EU citizens. At all events, what FOM allowed in practice was not just economic flexibility but a huge personal flexibility whereby, for example, a young person might go to another country for a few years to work or study, with no need or intention to settle there permanently. Or a couple comprising different nationalities but both holding EU citizenship could move between their respective countries of birth, or to any other EU country, at different times according not just to their jobs but, say, their children’s education or to look after their parents. It is that richness of interchange that the UK has deprived itself of and, of course, deprived its own citizens of.

Small boat psychosis

Meanwhile, the festering grievance about ‘illegal migrants’ has grown since Brexit, starting with the confected outrage and alarmism about the ‘small boats’ whipped up initially by Farage to become an almost incontrollable Tory psychosis. Psychosis may seem like a strong word, but I think it is apt when the former Home Secretary Suella Braverman talks, as she did this week, of “the crisis … of mass uncontrolled illegal immigration … pouring into our country … break[ing] in to Britain … putting unsustainable pressure on public finances and public services … jeopardising national security ...” Such hyperbolic language is completely disproportionate to the scale of what is actually happening. And it is not just Braverman. When Immigration Minister Robert Jenrick resigned this week, he wrote of how “the small boats crisis is a national emergency that is doing untold damage to our country”, and in referring to the Rwanda Bill as “emergency legislation”, needed because a “reasonable country” has been pushed to the limits of its patience, Sunak is complicit in the psychosis.

In fact, since 2018, about 100,000 people have made the ‘small boat crossings’, peaking at about 46,000 in 2022 and numbering just over 27,000 this year (as at 13 November 2023). By international standards, those are not huge figures and they certainly don’t constitute “a national emergency” in any sensible meaning of the term. The crisis, if there is one, is in the government’s inability to undertake the basic administrative task of creating a fair and rapid claims-processing system, and its dogmatic refusal to create adequate safe routes for claims to be made. Moreover, the small boat crossings are, at least in part, a problem which has been exacerbated by Brexit and, certainly, they are evidence that the Brexiter claim that leaving the EU would reduce or eliminate such problems was a lie.

Within this context, the Rwanda policy over which Jenrick resigned, and which may now conceivably bring Sunak’s government down, is especially mad. For one thing, even if it were ever implemented, it would have only the tiniest impact on the processing of asylum claims, and little, possibly no, impact on small boat numbers. For another, it shows a distinctly Brexitist logic, most ludicrously in the idea that passing a law which declares that Rwanda is a safe country will make it a safe country – the legislation is actually called the Safety of Rwanda Bill – the latest example of the idea that falsity can be willed into becoming truth.

More ominously, it is the latest and by far the most serious example of how Brexit has led the UK into seeing international law as something of no account, at least for itself, an aspect of Brexitism which first emerged with the proposal to break international law with the Internal Market Bill. Indeed, its notable that Jenrick, who once practised as a solicitor, resigned because the latest Rwanda legislation did not go far enough in discarding international law. Meanwhile, in perhaps the most extraordinary twist so far, the Rwandan government has issued a statement suggesting it might pull out of the whole deal if it involves the UK being in breach of international law!

Brexit’s utter failure

Any lingering hope that Brexit would finally lay to bed all the fear and panic about ‘uncontrolled immigration’ and ‘bogus asylum seekers’ must surely now be dead. Instead, it lives on in ever-more vicious and hysterical ways. The Brexiters said that all they wanted was to control who came to the UK, but that was a lie. They said that they just wanted to ensure that only those with the skills needed to contribute to the economy, but that was a lie.

As with every other Brexiter demand, whatever they are given they always say it hasn’t been done in the right way and they always, always want more. On asylum policy, Sunak is just the latest Tory Prime Minister to find that even adopting totally unworkable and abhorrent policies will not placate them. It will never be enough to be ‘true Brexit’ or ‘true Conservatism’, though he has added to his woes by being politically unskilled enough to tie his fate to making an unworkable policy work.

In 2017, Dominic Cummings said “The single most important reason, really, for why I wanted to get out of the EU is I think that it will drain the poison of a lot of political debates … UKIP and Nigel Farage would be finished … Once there’s democratic control of immigration policy, immigration will go back to being a second- or third-order issue.” This idea, still sometimes expressed by well-meaning liberals (£), that Brexit spiked the guns of far-right and populist politics in Britain, defusing its demands by attending to its grievances, has proved utterly false. On the contrary, and not just in relation to immigration and asylum, it has made such politics mainstream. In this, as in every other way, Brexit has utterly failed.

Should Labour be bolder about Brexit?

One of the benefits of having re-enabled comments on this blog, to me at least, is to be able to see what issues get flagged up by readers as interesting or debatable. Last week’s post was mainly about the government’s Autumn Statement, but many of the comments focused on my far briefer observations about Labour’s post-Brexit policy. I have written about that at length in the past, but it is clearly an issue which is becoming more pressing as the next election gets closer, with some recent well-informed speculation (though that is all it is) that it could be as early as May 2024. And, of course, recent and current opinion polls suggest that Labour will win, which also adds salience to the question of how they would approach the UK-EU relationship in government.

Curtice’s analysis of the Labour vote

This issue has also been getting fresh attention because of recent remarks by the eminent polling expert Professor Sir John Curtice about the structure of current voter support for Labour. He suggests, in quite forceful terms, that “Labour’s presumption that they couldn’t get into an election winning position without fundamentally changing the character of their support vis à vis Brexit has been demonstrated to be false”. He makes three key points to explain and justify that. First, that those 2016 leave voters whose support Labour have gained since the 2019 election are atypical leave voters in that they tend to be those who now support re-joining the EU. Second, in line with general shifts against support for Brexit, those people who did vote Labour in 2019 are even more likely to be opposed to Brexit now than they were then. And, third, new voters, who were too young to vote in 2016 and/or 2019 are overwhelming pro-Labour and anti-Brexit.

The implication of this might be (I am not sure that Curtice has said this in terms, but it is certainly the conclusion that many are drawing from what he said) that Labour could have adopted, and could still adopt, a more strongly anti-Brexit position without threatening its chances of winning the election. That would, presumably, mean adopting a policy of seeking to re-join the EU or, at least, the single market (and/or entering into a comprehensive customs union with the EU). On Curtice’s analysis, such a policy would go with the grain of most of those intending to vote Labour. It would also (this is my view, not what Curtice said) be a far more credible economic policy because of the now strong evidence, discussed in my previous post, of the damage Brexit has done, and will continue to do, to growth and investment.

Economics and honesty

The economic argument appears to me to be unassailable, and as I observed last week it is quite dishonest for Labour to suggest that any changes that could realistically be made to the existing Trade and Cooperation Agreement (TCA) would make much economic difference. Labour’s proposals shouldn’t be entirely dismissed, though, as they will smooth some of the roughest edges of what Frost and Johnson agreed. There is also some validity in Labour’s argument that, from the perspective of investment, there is a value simply in providing stability and consistency. That was the message from business (£) at this week’s ‘global investment summit’, and Labour’s commitment to maintaining regulatory alignment with the EU speaks to that. There is also value in possible improvement to security cooperation, and in a general improvement in the tone of relations with the EU. But the benefits of what can be done within the TCA framework shouldn’t be over-stated.

That doesn’t mean getting het up about Labour’s ‘make Brexit work’ slogan which, vapid and irritating as it is, is no more than slogan. Nor is it to make the common criticism that Starmer is indulging in ‘cakeism’ with his proposals. That is off-beam, in that things like a Sanitary and Phyto-Sanitary (SPS) or Veterinary deal, a TCA mobility chapter, and a security pact have been on offer from the EU in that past, and if Starmer pursues them it will be on a something-for-something basis, not the something-for-nothing which defines cakeism. But, as someone commenting on last week’s post under the name ‘El Fred’ put it, it could be regarded as a kind of ‘shrinkflated cupcakeism’ if that means that Starmer is at least implying that it would be possible to yield significantly larger benefits without changing the fundamental structure of the TCA.

One issue here, economics aside, is simply that it would be a refreshing antidote to the years of political dishonesty about Brexit if Labour were to tell the truth. After all, it is dishonesty which got us into this Brexit mess and, whether in relation to Brexit or anything else, it is honesty which the public say is what they most want from politicians. At the least, honesty would mean Labour being open about the fact that their post-Brexit proposals will make very little economic difference. But, refreshing as that might be, it would not be a viable policy position in itself, since it would invite the obvious demand for them to develop proposals which would make such a difference. That takes us back, then, to some version of ‘rejoining’, with the implication of the Curtice analysis being that this would not preclude Labour being in an election-winning position.

Could Labour change policy?

I don’t question for a moment that Curtice is right in his account of the structure of the Labour vote. But I’m not convinced that it carries the implication that Labour could adopt some version of a re-join policy without suffering electorally. One problem is just that there may be a difference between the overall structure of the Labour vote, as outlined by Curtice, and its structure within particular Labour marginal seats and Labour target seats. I don’t know, and it would only be possible to know through constituency-level polling. But I assume Labour conduct such polling and, if so, perhaps it is this which explains their stance but, of course, the results of these polls are not in the public domain.

Leaving that speculation aside, for Labour to espouse any version of re-joining would not just be one policy amongst others, an uncontroversial addition to their existing proposals. It would inevitably become the major focus of the campaign, overwhelming every other debate. That would carry huge dangers for Labour because, despite what Curtice says about the structure of their vote, it doesn’t follow that voters who support re-join see this as the central political issue, or that they would support another referendum, which would certainly be a necessary prelude to re-joining the EU or even the single market [1].

On the first point, of course some Labour voters do see Brexit as the major issue, but there will be many shades of strength of feeling about that, even amongst some who would vote to re-join. Remainers and re-joiners are not a homogenous group, and most readers (as well as the writer!) of this blog are hardly likely to be representative of them. So the danger for Labour is that they are seen as ‘banging on about Brexit’ when it is not the priority issue for the voters. The LibDems (although for them the electoral calculations will be different) also seem alert to this danger. For, indeed, current polls show that only 15% of the electorate think ‘leaving the EU’ is amongst the top three issues facing the country, and just 13% of the 18-24 age group do so. Even amongst 2016 remain voters the figure is only 22%, amongst LibDem voters it is 23% and amongst Labour voters it is 20%. It’s true that the issue that does most concern voters, ‘the economy’, is inextricably bound up with Brexit, as are some of the others, but it doesn’t follow that voters see it in those terms or, if they do, that they see it as the main factor.

On the second point, recent polling evidence suggests that only 39% of the population support another referendum being held in the next five years. That rises sharply to 63% amongst those who intend to vote Labour but, also amongst Labour-intending voters, 25% are opposed to such a referendum (the split amongst 2016 remain voters is almost identical). Even looking two terms ahead, to a referendum within the next ten years, the figures remain similar at 69% and 17% [2]. Again, it’s not clear what strength of feeling attaches to these views, but there must be at least some who are opposed to another referendum so strongly that the prospect of one would dissuade them from voting Labour, and at least some, perhaps many, who are in favour but whose support for it is fairly lukewarm, at least to the extent of not regarding it as a priority for the next Labour government.

How would changing Labour’s policy affect the Tory vote?

There’s another important campaign issue in this which Curtice’s analysis ignores (or, at least, it does in the clip I am discussing). Labour’s Brexit position is not just about the structure of the Labour vote, it also affects the structure of the opposition vote. If Labour put forward a re-join policy, that would enable the Tories to re-group and rally around a ‘defend Brexit’ campaign, galvanizing its core vote and, in particular, making it much easier for them to hoover up Reform Party voters who, as the opinion polls stand, look set to split the right-wing, Brexit-supporting vote. For these are voters to whom Brexit really is a defining issue.

At the moment, attempts to give a ‘vote Farage, get Starmer’ message to such voters have little chance of success. They don’t loathe Starmer as they did Corbyn, and they think Labour are probably going to win in any case. So they have a free-hit protest vote against Rishi Sunak, who they don’t regard as ‘real Conservative’ anyway. But the moment Labour adopted a re-join policy all that would change, and with current opinion polls giving Reform as much as 10% of the vote that could have a big effect. Perhaps that effect would be enough to keep Labour out of power but, even if not, then it would certainly be enough to reduce its majority, and enough to stave off a possible Tory wipe-out.

This point, just on its own, makes Labour’s stance explicable, and might also carry weight with those rejoin voters tempted to ‘punish’ Labour for the insufficiency of its Brexit policy. There is a real, epochal chance for the Tory Party to be not just defeated but annihilated in the election. It’s a chance that actually arises from Brexit itself, in that it is this which has created a schism in the electoral coalition between ideologues and pragmatists that normally holds the British right together. Small wonder that Labour don’t want to squander the possibility of such a prize by gifting the Tories a way of preventing such a schism.

What would changing policy mean for a Labour government?

This reasoning becomes all the stronger by considering what would it mean for Labour in government, even assuming it could win an election on a re-join platform. That could only mean re-joining becoming the dominant political issue for its entire first term, and an issue where success could by no means be guaranteed. It would mean holding another referendum with all that, by now, we surely know that entails for marginalizing every other issue. And it would mean winning it, which is far from certain especially if, as would surely be vital to settle the matter, it was this time held on the basis of a super-majority being needed.

Then, if all that was achieved, it would just be the beginning of a prolonged process of application to join, an application which might well fail. For, as has so often been pointed out, the EU, and its individual members, are likely to have grave reservations about UK membership. Those reservations would be all the greater if the referendum were again held as a simple majority vote, and that vote was only narrowly to re-join. But even a super-majority would not in itself eradicate the fear that, in a few years, with a new government, the UK would change its mind again. And even if that hurdle were overcome, the accession process would take time, and might not be completed by the end of Labour’s term of office. So it would go into the following election without having delivered its flagship policy.

A better approach?

Taken together, these arguments provide a strong case for the approach Labour have adopted. Where I think they have made a serious mistake is in being so dogmatic in opposing any form of re-joining, ever. It is easy to understand why, because the Tories would have exploited any ambivalence in order to claim that Labour has a ‘secret plan’ to re-join. They have tried that anyway (£), but it has had little traction precisely because it is so clear that there is no such plan. And, by the way, the Tories’ attempts in this regard give further weight to the point that, from their point of view, a Labour re-join policy would be an electoral boon, and perhaps the only thing that can save them.

However, understandable as the dogmatism of permanently ruling out re-joining may be, it has created a nasty straitjacket for the future. As I argued exactly a year ago, I think a better policy would have been to say that re-joining would have to await a strong popular and cross-party consensus, putting the responsibility with the Tories, where it properly lies, and, in the meantime, to propose improving the TCA, if possible, without over-claiming for its economic effects. This would have the virtue of honesty, an honesty which would also provide the political justification for the limitations of Labour’s policy.

Facing up to reality

With all this said, whatever I think, or whatever anyone may think of the arguments in this post, what seems unarguable is that Labour are not going to change their current Brexit position, and that becomes all the more so the closer the election gets. Even if it isn’t until the end of next year, there just isn’t time to make, communicate, and consolidate support for such a change. So, even if it is true that Starmer could or should have had a bolder position from the outset, it isn’t going to happen now.

Thus, like it or not, for voters dissatisfied with, or even disgusted by, the current position the choice will be whether to use their vote to make a Labour government or a Conservative government more likely (I phrase it that way as, in different constituencies, the voting implication of that will be different). Of course, that choice isn’t just about Brexit, but, on Brexit, even given the limitations of Labour’s policy it would be wrong to think that there is no difference between them and the Conservatives, so it’s a choice that matters and, anyway, it’s the only choice that is going to be on offer.

In a sense, the choice facing the most committed re-joiners is the mirror-image of that facing the most committed leavers. The latter have the choice of voting for what, in their terms, would be the Brexit purism of the Reform Party or the hopelessly compromised and deeply suspect Conservative Party. At the moment, it looks as if enough will choose ‘purity’ to keep the Conservatives from power. The choice on the other side, for ‘purist re-joiners’, is whether they want to do the same to Labour.

 

Notes

[1] There is a view sometimes expressed amongst advocates of single market (SM) membership that re-joining that, rather than the EU, would not require a referendum. There are three variants of that view. One is that, unlike EU membership, SM membership would not be a constitutional change. The second is that SM membership would have been compatible with the 2016 referendum result, and so would not require another referendum. The third is that, if Labour won an election on a rejoin SM policy, that would provide all the mandate needed.

All three versions, even if legally correct (which is arguable), are hopelessly naïve politically (in ways reminiscent of the LibDems’ ‘revoke Article 50’ policy in 2019 which, as I argued at the time, was deeply flawed both in principle and as a political tactic and strategy). For one thing, they all imply that it would be legitimate for a future Tory government to reverse policy, which also makes it an unappealing prospect for the EU/ EFTA. But that is part of a bigger issue: whatever we now do, it surely has to be permanent, and needs to be unequivocally seen as legitimate, rather than achieved by what is, or could easily be represented as, some sleight-of-hand or trickery. The Brexiters failed to achieve that, even with a referendum. If they had succeeded, we wouldn’t even be debating these matters any more. So if we have learnt nothing else from them, and from the Brexit saga generally, it is that such a mistake can never be repeated.

[2] This poll also shows that support for an immediate referendum is much weaker, with only 42% in favour and 48% against amongst Labour-intending voters (and almost exactly the same amongst 2016 remain voters). But it’s not clear what weight to put on that as the question was about a referendum “in 2023”, a pretty absurd one given that it was asked in August 2023. So I think the five- and ten-year questions I’ve referred to are the more important ones. Even so, the answer to the ‘in 2023’ question does underscore the point that support for re-join if there were to be another referendum is the not the same as support for attempting to re-join by holding another referendum.