The flawed logic of 'sovereign equals'

This week’s Brexit news, such as it is, continues to circle around arguments for and against extending the transition period. The government’s substantive arguments against doing so – state aid rules, budget contributions, and ability to deal with the coronavirus crisis - were rehearsed in a good article by Arj Singh in HuffPost. The article also included useful critical discussion of each of these, from Professor Anand Menon of King’s College London, and Georgina Wright and Maddy Thimont Jack, both of the Institute for Government.

However, one development of note was flagged up in Michael Gove’s comments during a Select Committee appearance. Some of these were boilerplate stuff about there being no need to extend the transition period as there is enough time for a deal to be done. In support of this contention there was, as usual, a bogus historical comparison (on this occasion, with the time taken for the 1957 Treaty of Rome to be completed, ignoring that there were many years of prequel and sequel to that) and a slightly absurd call for the EU to ‘concentrate its mind’ on Brexit in view of the coronavirus crisis.

This is all largely by-the-by and was really only a riposte to Michel Barnier’s pointed criticism of the UK at a press conference the week before which might be summarised as a call for Johnson’s government to ‘get real’. Considered as such a riposte, it could in turn be summarised as ‘shan’t’ and, indeed, all such calls have been resisted for four years now.

The UK’s new approach to the Brexit negotiations

By contrast, the interesting aspect of what Gove said lay in his repeated references (subsequently re-enforced by ‘Number 10’) to the UK as being an ‘independent’ or ‘sovereign’ state and, with that, his complaint that the EU was failing to treat the UK as such. This terminology has been emphasised for several weeks now, beginning at least with the publication of the government’s negotiating approach at the end of February. It is also frequently used by the UK’s Chief Negotiator David Frost who regularly re-iterates that the negotiations are between ‘sovereign equals’, and it was deployed forcibly this week in the UK’s insistence on certain fishing rights being “just fundamental” to what “an independent state” means.

At first sight, this might be taken as just another outing for Brexiter sloganising about ‘taking back control’, but it codes a much deeper shift in how the UK is approaching Brexit under Boris Johnson. Throughout May’s Article 50 negotiations, the frequent accusation was that Britain was trying to ‘cherry pick’ the advantages of EU membership, whilst avoiding the constraints and obligations of such membership. Both the EU and many UK commentators remarked that this failed to understand that, after Brexit, the UK would be a ‘third country’. At the same time, many Brexiters were suspicious of such an approach, believing that in practice it would keep the UK tied too closely to the EU’s orbit.

In the new approach, the government has flipped this criticism around so as constantly to emphasise that what it is seeking is a series of arrangements which are in line with precedents from third country relationships with the EU. The precedents vary, according to what aspect of the future relationship is being referred to, but in the negotiating approach document they include Canada, Japan, Australia, New Zealand, South Korea, USA, and Norway. The term ‘precedent’ or cognates of it appear 30 times in the 30-page document.

The significance of this is two-fold. On the one hand, it is a message to the EU but also to both pro- and anti-Brexit actors domestically, that the UK is neither asking for anything which is unreasonable for a non-member nor for anything which is in any way incompatible with Brexit. On the other hand, and here the notion of ‘sovereign equals’ is important, it implies that these arrangements are or should automatically be on offer to the UK since they are selected from the menu of what independent states are able to agree with the EU.

A naïve and misleading approach

In this respect, it is an approach which is at best naïve and at worst deliberately misleading. It seems to derive from transposing the rules-based nature of EU membership on to the EU’s external relationships. EU membership entails rights and obligations within a system of rules, since that is the only way of holding together a group of (yes) sovereign, independent countries. It is that which precludes cherry-picking, which would fatally undermine such a rules-based system. Once the rules are bent, they cease to be rules. Hence the impossibility of being both a beneficiary and a non-member. What the government’s new approach implies is that the same logic applies to third countries. That is, that they, too, have a certain set of rights, albeit different to those of member states. David Frost has expressed this quite unambiguously in saying that the British approach is “to claim the right that every other non-EU country in the world has”.

If that were indeed so, then, of course, there would be no reason why the UK shouldn’t have, say, a New Zealand-type veterinary agreement or a Japan-style agreement on financial services regulation, to give two examples envisaged in the UK negotiation approach document. In particular, to take the central and most contentious example, there is no reason why the UK should not have a Canada-style Free Trade Agreement without the need for additional Level Playing Field Commitments. All of these are ‘within the rules’ for third countries, have ‘precedent’ and, therefore, the UK has a ‘right’ to them by definition.

But there are no such ‘rules’ or ‘rights’, and the quasi-legal notion of ‘precedent’ is all but irrelevant in this context. To the extent that the EU is, indeed, a ‘sovereign’ it can make whatever external agreements it sees fit, with or without regard for ‘precedent’. What it will do is based upon the calculation of its own interests, refracted through the internal negotiation of the differing interests of its own member states. In particular, what is at issue is the relative negotiating strengths of the EU vis a vis the UK.

A meaningless construct

In this respect, ‘sovereign equals’ is a meaningless construct. Sovereignty applies equally to all countries, but that does not make them ‘equal’ with respect to what they can achieve in trade or other negotiations. The US is the sovereign equal’ of, say, Chad – but in any negotiation between them the US is clearly the stronger party, and it would be absurd to imagine that because the US has such and such a relationship with, say, Canada, it follows that this would be made available to Chad.

The disparity between the UK and the EU is, of course, much less than in this example. But economically, especially, the differences in size between the two is enough to make the EU stronger. Yet, on the other hand, precisely because of the UK’s economic size and proximity to the EU, it is unsurprising that the EU is not willing to offer a Canada-style trade deal without additional preconditions and safeguards.

An alternative reading of being ‘sovereign equals’, and one which is found in numerous government statements, is that it simply means that just as the EU will not accept or be bound by UK law, regulation and jurisdiction so the same thing applies to the UK as regards EU law, regulation and jurisdiction. This is important within the context of the negotiations because it codes, in particular, the idea that any role for the ECJ would be unacceptable to the UK.

But this version of sovereign equality is also naïve and misleading. The global economy relies upon trans-national regulatory systems of which those of the EU and the US are by far the most extensive and powerful. The UK is of course free to set its own standards, and to that extent is the sovereign equal of any other country. But there is no possibility of the UK being an international ‘rule maker’ and to that extent is bound to be a ‘rule taker’. The Brexiter position on this is in any case contradictory given the enthusiasm they evince for trading ‘on WTO Rules’.

The outcome of the negotiations will therefore be a matter of realpolitik, not of a quasi-theological notion of ‘sovereign equals’ nor of a fantasy that some system of rules and rights governs what kinds of deals the EU does or does not do. It is also quite irrelevant here to talk, as Brexiters often do, of what the EU ‘ought’ to do if it had regard for their (the Brexiters’) calculation of its (the EU’s) interests, or those of its member states, or of their industries (the German car maker argument). That’s a matter for the EU, just as it is the for the UK – in that sense, only, are they sovereign equals. Both can make their own decisions and, as it may be, their own mistakes.

How to make sense of all this?

At one level all this is – as so often – more to do with a domestic audience than the EU. Thus the Daily Express reported it as Gove “blasting” the EU for refusing “to accept its own logic” (i.e. a version of the ‘precedent’ argument). That is in part another example of how Brexit continues to be conducted as if it were still in campaign mode but, of course, also an indication of how, especially if no deal is done, it will be blamed on EU intransigence.

At another level, I think it reflects something which many remainers fail to understand. Committed Brexiters really do believe their own propaganda and, in particular, really do believe that ‘sovereignty’ confers unconstrained freedom. In this sense, their fantasy of what being a ‘sovereign equal’ means as a non-EU member is the mirror image of their erroneous belief that sovereignty had been lost by virtue of being an EU member. And allied to that is the persistent paranoia that, as a member, the UK was ruled by the EU and as a non-member is being punished by the EU.

But there are some more fiddly and detailed issues in play here. Firstly, during the May years, as it became progressively clearer how complex the realities of Brexit would be, Brexiters developed the notion of ‘managed no deal’. It was a non sequitur, for it entailed making deals without making a deal. But it lives on in the present negotiations as what might be called ‘managed no deal 2.0’. For whereas the EU approach is to seek a single deal, encased in a single governance architecture, the UK ‘precedent’ approach envisages a series of mini-deals, modelled on this or that precedent.

There’s some irony in this, since one could argue that the EU approach is to offer a ‘bespoke’ EU-UK relationship whereas the UK’s is to seek a number of ‘off the peg’ solutions. So the EU is proposing something which, to the cheers of Brexiters at the time, Theresa May and David Davis said was vital – this was the meaning of her ‘red, white and blue Brexit’ - whereas the UK is proposing what she, again to Brexiter cheers, dismissed as unacceptable.

Secondly, what is going on is an outgrowth of another Brexiter nostrum, namely that the EU ‘always blinks at the last moment’. This has been a claim going right back to David Davis’ tenure as Brexit Secretary, much of it based on an erroneous comparison with what often happens at EU Summits between member states and the situation of a negotiation between the EU and a departing – or, now, departed - member. But it took on a new life when Johnson supposedly re-negotiated May’s withdrawal agreement last year.

The ‘supposedly’ gives the lie to the analysis that it offers a template for the current negotiations. For it is not that the EU ‘blinked’ but, rather, that Johnson accepted something that both he and May had previously rejected as unacceptable, namely an Irish Sea border. And, in any case, what that episode reveals more than anything else is that the hasty cobbling together of an agreement to suit an ad hoc timetable created something which has huge practical problems of implementation (as Dr Katy Hayward of Queen’s University, Belfast has pointed out this week) and key aspects of which the UK does not seem to accept anyway leading to rapidly increasing tensions. So if there is a lesson for the EU in it, it is not to do a deal in a hurry.

That aside, the ‘EU will blink first’ idea is given fresh impetus by the new approach of relying on third country precedents, because the assumption is that since the EU has agreed to them for other countries then, when push comes to shove, it will do so for the UK. On this analysis the EU is simply being recalcitrant and, when stood up by ‘an equal’ will back down. Again, that’s clear in this week’s fishing row, when the UK line is that it’s going to take time for the British position to “sink in” with the EU.

One huge difficulty this creates is that it precludes agreeing to an extension by the end of June, when it needs to be decided if it’s to happen, because the assumption is that the ‘last moment’ for the ‘blink’ will not arrive until the end of December. So if the analysis is then proved to be flawed it will be too late, and the UK will have to pay the heavy price of the consequences.

Contradictions and limitations: Europol and Lugano

Finally, within the undergrowth of the detail, this week saw two stories which speak, in different ways, to the analysis offered in this post. The first shows the contradictions of the UK position. For, despite the new ‘third country precedent’ approach there are still elements of the old ‘cherry picking’ approach in relation to Britain’s reportedly “impossible demands over access to Europol databases”. Here, the UK wants to “approximate the position of a member state as closely as possible”, suggesting some continuation of the flawed idea that there is a kind of ‘alumnus’ status available to Britain as a former member.

The second story shows the limitations of the UK position. It relates to what is, no doubt, to many the obscure issue of the Lugano Convention (the obscurity is also yet another example of how the huge ramifications of Brexit were barely discussed during the Referendum campaign). This is a cross-border legal agreement whereby civil and commercial judgments made in one participating country’s courts can be enforced across all the participating countries. It sounds dull, but it’s important to business, and doesn’t present a problem for Brexiters because it doesn’t involve the ECJ.

So Britain, which hitherto participated by virtue of its EU membership (and, currently, the transition period), applied for independent membership earlier this month. The government’s argument is that this something open to countries around the world (so: the third country precedent argument). But Britain doing so requires, amongst other things, the approval of the European Council and it has been reported this week that such approval may not be “in the EU’s interest” (£). The outcome remains to be seen. But the significance of this is clear. The idea that the UK can fall back on an imaginary world of self-determining national sovereignty is entirely flawed. That sovereignty is constrained by, and contingent upon, decisions made by others.

The bigger picture

Crucially, this is not just about specific aspects of Brexit. It goes to the heart of the entire, flawed, Brexit project. Again and again that project relies upon, at best and then only questionably, Eighteenth and Nineteenth Century ideas of nationhood and international trade.

That is most evident in the way that free trade is treated mainly as being about goods tariffs and their abolition (£), which also explains the failure to understand the nature of the single market, services trade, and how removing non-tariff barriers entails ‘losing’ sovereignty through creating international regulations. But it was also evident in David Frost’s recent speech explaining the entire approach to the future terms negotiations as based on Burkean theories of sovereignty.

It is from this approach that the current rhetoric of ‘sovereign equals’ derives. It is totally inadequate for the present day and to use it as the basis for negotiations is almost to guarantee that those negotiations will fail.

Book review: Realism or optimism?

This week’s post, which is a day earlier than usual, is the latest in a series of occasional reviews of Brexit-related books, which can be found via the ‘Book reviews’ tag.
 
Foster, Peter (2023) What Went Wrong with Brexit and What We Can Do About It. Edinburgh: Canongate Books. ISBN 978-1-80530-125-7 (Hardback). 178 pages. £14.99

I don’t think that, in general, Brexit has been very well-served by British journalists. Political journalists, especially, struggled to capture the way that Brexit grew out of, and brought with it, a very different kind of politics from the traditional Westminster ‘game’. Perhaps even more, they struggled with the politics of the UK-EU negotiations, reflecting the pre-existing lack of British interest in the politics of the EU which was arguably a contributory factor, if minor, to why Brexit happened at all. Beyond that, very few journalists seemed able to engage with the deep technical complexities of Brexit, something which contributed to enabling Brexiter politicians to escape media scrutiny.

Indeed, at the height of the Brexit process, between, say, the triggering of Article 50 and the UK’s formal departure from the EU in 2020, I often found non-UK journalists more helpful in understanding what was going on. Tony Connelly, RTE’s Europe Editor, was undoubtedly the foremost of these, but there were others, including Annette Dittert of Germany’s ARD. Of course, there were also some fantastic UK journalists. Faisal Islam, when Political Editor of Sky News (though less so since he became the BBC’s Economics Editor); Ian Dunt, then the Editor of politics.co.uk; and Lisa O’Carroll, at that time the Guardian’s Brexit correspondent, all come to mind, but again there are others.

Peter Foster was and is undoubtedly one them, and I’ve referred to his work countless times on this blog (to the extent that he even has his own tag, though it by no means captures all the references). What he shares with all of those just mentioned is a capacity to understand the ‘big picture’ of Brexit whilst also engaging with the often arcane, technical details. It’s a quality he showed as the Telegraph’s Europe Editor, when, if I recall correctly, his focus was mainly on the Brexit negotiations, and, since then, as Public Policy Editor of the Financial Times. In fact, especially since taking on the latter role, I would say he is the foremost journalist, whether in the UK or elsewhere, in covering the detail of what Brexit means for, especially, businesses, supply chains, and regulation.

Readable, forensic, and realistic analysis

It is these things which are the main focus of the book (which of course means that there are other components of Brexit which aren’t within its ambit), and it provides a superb and authoritative account of them, made accessible by examples and vignettes. This readability of what might otherwise be rather dry material is also aided by a writing style which, and I imagine this is no easy task, transfers well from newspaper columns to the rather different demands of a book-length treatment.

Foster’s explanation of what Brexit has meant for businesses is forensic, if not brutal. Over and over again, he dissects how Brexiters misled themselves and others in what they were doing. Examples include David Frost’s disastrous, “never seriously substantiated” dismissal of the significance of non-tariff barriers to trade (p. 17), the resurrection of freeports which in economic terms “were destined to be empty vessels” (p. 48), the Brexiters’ “red tape fallacy” (pp. 29-38) that amongst other things led to the UKCA debacle (p. 71), and the “magical construct” of an invisible border between Ireland and Northern Ireland (p. 104).

The book also contains a calmly withering overview of post-Brexit independent trade policy (pp. 54-64) and a careful account of what Brexit has meant for immigration (pp. 81-89). Unsurprisingly, at least to those who have read his FT columns, there are also superbly clear explanations of what Brexit has meant for particular sectors, such as chemicals (pp. 73-75), auto (pp. 75-79) and the travel industry (pp. 94-97).

Underneath all these individual issues lies the “magical thinking and dogma” (p. 41) which has consumed the British political and policy-making process since 2016. The story of how that happened is concisely but crisply narrated in chapter three (pp. 39-53).

All of this forms part one of the book, ‘What went wrong with Brexit’, which accounts for about two-thirds of the text. The briefer second part is concerned with ‘What to do about it’. Here, the discussion is equally assured and well-informed, and, in my opinion, realistic in focusing mainly on what can be done to improve the tone of UK-EU relations and the terms of the Trade and Cooperation Agreement. He also suggests that, especially if a better tone is achieved, the UK could re-apply to rejoin the Lugano Convention, having previously been refused, facilitating the resolution of international legal disputes for businesses. Other ideas include seeking to join the Pan-Euro-Mediterranean (PEM) Convention to harmonize Rules of Origin.

Many of these proposals have been made by bodies such as the UK Trade and Business Commission and the Tony Blair Institute, but are helpfully brought together and clearly set out here. What Foster advocates also looks likely to be (the maximalist version of) Labour policy if they get into power, although he doesn’t put it in these terms, and he spells it out in far more detail and with far more clarity than they do.

Again, in my view, rightly, Foster suggests that, taken as a whole, the value of such an approach is a bit greater than some critics, both pro- and anti-Brexit, allow. But he isn’t starry-eyed about it, being far more honest than Labour politicians are (at least openly) about the “limited overall economic impact” (p. 168) these measures would have. Beyond them, he also advocates (pp. 168-175) more sustained and strategic policy-making, rather than the post-Brexit frenzy of half-delivered and often half-baked ideas, especially about how to re-energize business investment.

Misplaced optimism?

Clear-sighted as all this is, and constructive as its suggestions are, there’s a degree of optimism about it that may be misplaced. Foster’s guiding theme is that “it’s time to think again about Brexit by taking an approach based on facts, not fantasy and fallacy” (p.8). That leads to his overall conclusion that “post-Brexit Britain, quite literally, cannot afford more of the wishful thinking that has blighted UK policy-making since the 2016 referendum” (p.168) and “what is now needed is a realistic, sober vision for what Britain should look like in 2050 – allied to fact-based strategies for how to get there” (p. 175).

Again, I think Foster is completely right, but I fear he underestimates the extent to which Brexit has made that all but impossible. As I said in my own Brexit book, it has created a situation of it often seeming as if there are ‘Brexiter truths’ and ‘Remainer truths’. Ultimately this may, and hopefully will, change, but for now it means that “an approach based on facts” – which Foster’s certainly is – will too readily be dismissed, for all his attempts at even-handedness, as the work of a ‘remainer’, or perhaps even as being typical of the ‘globalist’ Financial Times. How can such an approach succeed when even the most basic of facts is so bitterly contested?

That is well-illustrated  by Daniel Hannan’s spiteful and dismissive review in the Telegraph (£), which I refer to, reluctantly, simply because it is illustrative; it has no other value. This describes the book as “myopic”, “pro EU”, and an example of “Brexit Derangement Syndrome” that will only interest remainers. In a related way, Foster rightly calls for “ending the politics of betrayal” (pp. 121-127) as part of the way forward but, as I’ve often argued on this blog, though it is far more eloquently discussed by the Irish journalist and author Fintan O’Toole, that politics is inseparable from Brexit.

Within the context of such tribalism and its associated betrayalism, not only are facts disputed they also get distorted. For example, on one of the few occasions Hannan touches on the substance of Foster’s book, it is to criticize him for not seeing that the UK’s continued use of the CE mark (rather than insisting it be replaced by the UKCA mark) should be regarded as a welcome possible “step towards mutual recognition”. But, for all that it may seem as if there are Brexiter truths and Remainer truths, on these kinds of issues some things are true and some are false. And Hannan’s claim is simply false, for the obvious reason that there is no prospect, and not even any proposal or suggestion, that the EU will start to recognize the UKCA mark reciprocally with the UK’s recognition of the EU mark.

This is only a tiny example, but it is misunderstanding, misrepresenting or ignoring the kinds of ‘nuts and bolts’ issues that Foster specializes in which allows Brexiters to continue to resist – indeed, to viciously disparage – a “realistic, sober vision … allied to fact-based strategies”. That is, it enables them both to ignore reality and to construct an alternative reality.

Catching or contributing to the tide of pragmatism?

Now perhaps the tide is turning, and the influence of Brexiter ideologues like Hannan is diminishing. That seems possible given Sunak’s at least sporadically more pragmatic approach to the EU compared to his predecessors (though as one was a pathological liar and the other plain bonkers, that’s not a high bar), and even more likely if Starmer’s Labour come to power.

Foster clearly believes that this, and growing public disaffection with Brexit, means “that space is now emerging for a re-think” (p. 4). If so, his book may have caught the tide of the times. I hope so. But, as he frequently and strongly emphasizes, “time is of the essence” (p. 8), and it must be an open question whether, especially with the pro-Brexit media denouncing every step towards sense as betrayal, any UK government can move fast and far enough to deliver even the still relatively cautious prospectus the book advocates.

On the other hand, one danger which a Labour government looks likely to face is that, along with Brexiter denunciations, it will also be attacked by remainers and rejoiners as being insufficient to the magnitude of the task. The positive reading of that is it will push Labour towards Foster’s more maximalist version of its presently disclosed policy. The negative reading is that, squeezed between those who say it is too much and those who say it is too little, the space for pragmatism will remain vanishingly small.

None of these observations detracts from that fact that this is an excellent book which should be read by anyone who wants to understand the intricacies – and idiocies - of what Brexit has meant for trade, businesses, supply chains and regulation, and what could be done to address some of them. Indeed, although some of its prescriptions have been made by various think-tanks and committees, this is perhaps the only book providing a serious and sustained analysis of what Britain might now, realistically, do about Brexit. So, even if the tide has not yet turned in a more pragmatic direction, it could help it to do so.

As such, I hope it is widely read, not least by policy-makers and by commentators who, if they shared Foster’s depth of knowledge and acuity of analysis, could do so much to re-shape the tone and content of the debate about Britain’s post-Brexit future.

My only gripe, but it is quite a big one, is with the publisher rather than the author (as I assume it is an issue of house style): the book gives no sources or references and, even more surprisingly, and very irritatingly, does not even have an index.

The government needs a post-Brexit strategy

It would be unfair to expect the Labour government to have achieved much yet. The peculiar timing of the election, in combination with the parliamentary recess, meant that there has been even less ‘political time’ than the three months of calendar time since then. That was mainly absorbed by dealing with the riots, with a degree of effectiveness which stopped them spiraling into a crisis, and beginning the process, both real and theatrical, of ‘discovering’ that the previous government left an economic and social disaster to be dealt with. This was the message of Keir Starmer’s ‘Rose Garden’ speech this week, effectively heralding the start of the new political year.

It would also be unfair to deny that the government has already made some real progress with what it promised for the UK’s relationship with the EU. Although Starmer said nothing in the Rose Garden speech about the EU or Brexit, the next day he promised to “turn a corner on Brexit” prior to trips to Germany, to discuss a new bilateral treaty, and thence to France where he met Emmanuel Macron. That followed the pattern begun from his government’s first hours and days, when he and his ministers took a series of steps to improve the tone of the relationship. It’s worth stressing this, as it is all too easy to forget just what a departure it is from the previous government, and the last few years. Moreover, these are necessary steps to effect any and every improvement in the substance of the relationship, up to and including any possibility of ever joining the EU in the future. So what has happened already shouldn’t be dismissed or belittled.

However, it clearly isn’t anything like enough, for two obvious reasons. One is that despite the repeated references to a  ‘re-set’ in the tone of relations, doing so cannot be the one-off event that this word implies. It will be an ongoing process. The other is that improving tone isn’t an end in itself, but a prelude to improvements in the substance of the relationship. Actually, despite their obviousness, I think these are oversimplifications in that, in reality, the relationship between tone and substance is recursive rather than linear, with substance impacting on tone as much as tone impacts upon substance. In particular, trust will have to be rebuilt iteratively, through both actions and words.

What does the government want to do about Brexit?

Beyond these obvious points, there is a much deeper issue. The government has yet to articulate its overall desire, or hope, for the UK’s post-Brexit relationship with the EU. Starmer talked this week of an “ambitious” re-set of relations – but ambitious for what, and why, and how, and when?

So far, before, during, and since the election, these questions have partly, and most vociferously, been answered negatively, in terms of the ‘red lines’ of not joining the single market, a customs union, or the EU itself. By definition, that does not provide a positive template for the future. The more positive answers have been, yes, to ‘re-set’ the tone and, on substance, to pursue a short list of discrete initiatives. The principal items on that list are a security and defence pact, a Sanitary and Phyto-sanitary (SPS) agreement, a mobility agreement for travelling artists, and mutual recognition of professional qualifications.

Even here, there is still remarkably little detail of what the government will seek, and in what time frame it hopes to reach these various agreements. An SPS agreement, in particular, seems to be the main improvement the government anticipates for border frictions, and yet it has remained resolutely ambiguous about what type of agreement it expects to reach. The important differences between types of agreement, both technically and in their political implications, have been discussed on this blog in the past and were recently excellently summarized by trade expert Sam Lowe, the principal one being between ‘equivalence’ agreements and ‘dynamic alignment’ agreements. Labour’s ambiguity cannot persist now it is in power, and it is hard to believe that those within government do not realise that there is actually only one choice.

For the reality is that if there is to be an agreement with the EU it will only be on the basis of some form of ‘dynamic alignment’ (since the EU long ago rejected an equivalence agreement as unworkable). If the UK doesn’t accept this, then there will be no SPS deal, but even if it does, with negotiations expected to begin in early 2025, it will take time. So, in either scenario, what happens to the much-delayed introduction of full import controls? What about the mounting costs of those controls which have been implemented, which businesses are now reporting to be even higher than the previous government had claimed? What about the bio-security risks being taken until such time as there is either an SPS agreement or import controls are fully introduced? Indeed, is the entire ‘2025 UK Border Strategy’ for “the world’s most effective border” still in place?

The absence of strategy

However, the real absence in the government’s approach isn’t the lack of detail on individual initiatives like an SPS agreement. Just as the government’s negative red lines do not offer a ‘template for the future’, neither does its list of wants. What is missing is any strategic framing.

Without such a framing, there is no logic guiding, or explaining, why it is these particular areas, and not others, which are the focus, or how the different initiatives are supposed to fit together. For example, as mentioned in a previous post, the government has already announced there will be legislation to keep the UK aligned with EU product safety rules. That’s an important decision. But why these rules and not others? The same question could be asked of reports that the government may seek to link UK and EU REACH systems for chemicals regulation.

The most likely reading of the government’s approach, and the safety rules policy supports it, is that it will seek, in all areas, the maximum closeness, cooperation and alignment with the EU short of breaking the Labour manifesto commitment to its negative red lines. All of its leading figures were opposed to Brexit, and whilst they no longer speak of it having been a massive mistake it is hard to believe that they do not still think so. At the very least, none of them is an ideological Brexiter, wanting divergence at any price as a matter of principle. Starmer has more or less said that in terms.

Even if this were not so, this government will be aware, just as the last one discovered, that basic practicalities mandate closeness (hence, whatever some of the Tory Brexiters wanted, there was so little divergence from the EU under the Tories). That may have been a distasteful necessity from a Tory point of view, but is likely to be seen as a virtue by Labour ministers and MPs. And the issue here isn’t just one of regulatory alignment, it is that over a whole swathe of economic and geo-political issues the UK’s proximity to the EU, both geographical and ideological, tends to mandate close cooperation. Hence the folly of Brexit, but even post-Brexit the same logic applies.

However, if this is the approach, then it hasn’t been announced as such, and doesn’t seem to be embedded in the government’s own inner workings. This was illustrated by the mess of this month’s mixed messages about whether the government would agree to an EU proposal, which first emerged in April, for a youth mobility scheme (YMS). As also happened at that time, YMS was immediately and falsely framed as being about ‘freedom of movement’, but whereas in April Labour (and the Conservatives) immediately rejected it, this month there was an initial report that the government was considering it. This was immediately contradicted by another unnamed government source, although with careful wording (‘no plans’ etc.) so it hasn’t been definitively ruled out. This week Starmer was similarly careful not to do so, although he did not endorse it either (also this week, exactly the same kind of wording was used in relation to rejoining the Erasmus+ programme).

Of course it is possible to read too much into this episode. It was summer, many politicians and officials were on holiday, and the status and credibility of the sources of the stories was unclear. But, apart from the confusion caused by these contradictory messages, the more significant issue to my mind is the way that the original story did not suggest that the government wanted a YMS, but that it might have to “give ground” on it to the EU in order to secure other agreements, for example on SPS. On that account, even if YMS is ever agreed, it would be grudging and transactional. On the subsequent account, it wasn’t being considered. So on neither account of the government’s position was there any suggestion that YMS would be actively welcomed, but nor, beyond the irrelevant mention of there being no return to freedom of movement, was there any explanation of why it shouldn’t be welcomed.

Joined-up government?

The YMS example is just one illustration of the absence of a coherent post-Brexit strategy. Last November, David Lammy, now the Foreign Secretary, said that relations with the EU would be Britain’s “number one” foreign policy priority. But if that is so, it cannot simply be a matter for the Foreign Office.

For example, whilst foreign policy and trade policy aren’t the same thing, they do overlap, so how does that square with Trade and Business Secretary Jonathan Reynolds’ threnody to the supposed value of global trade deals in an article last Sunday? It’s true that Reynolds also wrote of the importance of trade with the EU – referring to the usual standard list of measures I mentioned earlier – but such a twin-track approach self-evidently doesn’t imply prioritization.

It may be reasonable enough, given the government’s red lines, to pursue global trade deals, but there’s no need to pretend, as the Brexiters did, that they can be of great importance. So if Labour’s trade policy is to be consistent with its foreign policy, and if it is to be consistent with a re-set from the Tories’ approach, Reynolds would, or should, be positioning improving trade with the EU, even within those red lines, as the priority rather than engaging in boosterism about how wonderful CPTPP accession will be.

Similarly, the government has promised that a coherent industrial strategy will be central to its purpose. That, too, needs to be consistent with post-Brexit policy, with the manufacturing body MakeUK already calling for it to include measures to address the damage Brexit has caused. These measures would go beyond the government’s list of priorities, to encompass, for example, addressing the effect of ‘rules of origin’ in the UK-EU Trade and Cooperation Agreement (TCA). So will the government seek a full and formal re-negotiation of the TCA, or at least (given that the EU is unlikely to agree to that for the foreseeable future) identify that as a long-term aspiration? A different, though somewhat related, question is whether the government will seek an expansive approach to the 2026 TCA review, and if so what incentives will it offer the EU to engage in that?

On the specific issue of rules of origin, might the government seek to join the Pan-Euro-Mediterranean (PEM) Convention which, arguably, could help to address that problem? Or, in relation to a different issue, might it seek to re-open the UK’s failed application to re-join the Lugano Convention on cross-border commercial disputes? Or, in relation to yet another issue, with both economic and environmental policy implications, will the government seek to link the UK and EU Emissions Trading Schemes?

The point here is not, primarily, that the government needs to add to the short list of discrete measures or potential agreements, thus making it a long list. Rather, it needs to set out the overall framework and principles – the ‘vision’, to use a rather putrid term – through which the UK will seek to develop its post-Brexit relationship with the EU. That would also entail engaging extensively with all EU members, not just Germany and France, and not as a way of trying to circumvent Brussels, but as part of a coherent ‘neighbourhood’ policy. Equally, the government needs to connect this policy with its other intended reset with the devolved administration and regional Mayors.

Developing such a post-Brexit strategy would not, and could not, mean a huge, single, ‘Big Bang’ negotiation with the EU, or a quick process of delivery. The avenues for change will be the multiple ones of the different agreements and forums created by the complex architecture of Brexit. But it would mean that in each of those avenues the UK would be working towards an overall purpose, rather than piecemeal haggling and horse-trading.

The case for an explicit post-Brexit strategy

Crucially, such a strategy needs to be openly articulated. At the moment, whilst the implicit logic of the government’s approach is, at least arguably, one of maximalism, it certainly hasn’t been explicit about that. Its reticence presumably derives from its continuing fear of the pro-Brexit media and the possible effects on Labour leave voters, allied with the fear of being seen to be ‘banging on about Brexit’ and out of step with voters’ priorities.

It’s easy to understand those fears, when even Starmer’s trip to Germany this week led to accusations that he was reversing Brexit, as if leaving the EU had meant never talking to any of its member states ever again. Actually, a good response to such accusations would be to quote the Vote Leave campaign promise that Brexit would mean “we have better relations with our European friends”.

At all events, the government’s idea seems to be to pursue post-Brexit policy by stealth, through various boring technical adjustments, whilst in public talking about ‘tough negotiations’ with the EU over more high-profile issues. But if this is so it will create several major problems, as well as miss some major opportunities.

Firstly, it will make it much more difficult to maintain the attempt to improve the tone of the relationship, and to develop substantive improvements to it. This goes back to my point about the recursive relationship between tone and substance. An interesting post by Pascal Lth on the Europe Tomorrow substack argues that the defensiveness with which Labour responded to the YMS proposal was a “strategic mistake” not least because the UK will probably end up agreeing to it anyway, and therefore squandered “an ideal opportunity to rebuild trust through an agreement on a proposal of mutual interest”.

I think his more general point is, and if it isn’t then it’s the point I’m trying to make here, that a new and trusting tone in the relationship can only be effective if it is publicly acknowledged. Only that can shift the relationship from one of transactional negotiation aimed at reconciling divergent interests to one of shared partnership based on the recognition of mutual interests. That won’t happen if the government talks from one side of the mouth to the EU and from the other to the British public.

Secondly, if there is no publicly articulated strategy for a maximalist relationship, there will be little possibility of building a domestic political and public consensus for such an approach. Any cooperation that happens will have been achieved by stealth, and played out in public in terms of ‘winning battles’ or ‘making concessions’. That relates to the previous point, as if that is what happened then it will do little to build trust with the EU and, in particular, to build trust that whatever is agreed with the EU is durably rooted in public consent. That failure will in turn limit the depth and extent of what the EU is likely to agree.

To put this another way, a post-Brexit ‘re-set’ is needed not just in the tone of UK-EU relations but in the tone of domestic discussion of those relations. Of course, that will encounter the hostility of the Tories and much of the media. But if it is to be done, it would be better started whilst the Tories are distracted and in disarray, and when the government’s newness gives it the most power it will ever have to influence and defy the media. In any case, as is already happening, every move Labour make in this domain will be denounced by Brexiters as betrayal of Brexit, so the government might as well be clear about its strategy and try to build support for it. Moreover, beyond politics, such strategic clarity would enable businesses and other organizations to understand and anticipate developments since the broad direction of travel would be known.

Thirdly, there is a party management, and ultimately electoral, issue. Many within the parliamentary party, the party membership, and the Labour movement more widely, not to mention many Labour voters, are deeply disappointed by the timidity and limitations of the government’s approach. That would apply even if that approach really is the maximalist one I’ve discussed here because, of course, for many the fundamental objection is to the red lines which define the ceiling of its ambitions. Even so, if those ambitions were publicly and unashamedly proclaimed as the government’s strategy it would at least offer something to all those who want much more, and a reassurance that, indeed, the maximum within those red lines would be done.

Again, this can be illustrated by the YMS proposal. Just as Labour’s reaction to that squandered an opportunity with the EU over something that will quite probably be agreed anyway, so too did it squander an opportunity to give Labour’s pro-EU supporters some reason to have faith in the new government’s approach. Conversely, it gave them a reason to feel highly pessimistic. Whereas if, on this and other issues, the government openly pursued a maximalist strategy, building trust and cooperation with the EU and domestic public support for that, it would provide the necessary basis for their hopes eventually to be realised. In that sense Labour’s maximalism would meet the minimum threshold of rejoiners. There would always be a tension, but not an unmanageable one.

Silence is not a strategy

Brexit nerds may recognize this sub-title, as it was the title of a very early post on this blog, in September 2016, and was taken from the sub-title of an Institute for Government report written at that time, when we were still in the ‘Brexit means Brexit’ period. I’m stressing this because there has been a sense ever since the referendum, and perhaps even more since we left the EU, that Brexit is something best not talked about. Former diplomat Simon Pease, writing in East Anglia Bylines last week, made this exact point with great eloquence.

That has certainly been the case for the Labour Party under Starmer, with any kind of post-Brexit policy discussion having to be virtually prised out of him. That eventually happened in July 2022 and, remarkably, his proposals then were almost identical to Labour’s present policy, and, as I discussed at the time, contained exactly the same ambiguities. At that time, I gave a qualified welcome to it, but it’s depressing that there’s been literally no development of it at all, at least in public.

The general political silence continued during the recent election, though some party manifestos, most notably that of the SNP, broke it. The question now is how much longer can it persist? Brexit surely can’t be a permanently taboo topic. The new government has an opportunity and, more than that, a need to break it, by publicly articulating its post-Brexit strategy. It doesn’t even have to be called that. If the ‘B’ word is still so toxic, just call it a Continental or a Regional strategy.

Will it happen? Given the newness of the government it’s still possible, but Starmer had the perfect moment to do so in his Rose Garden speech this week. He could, with justification, have rolled dealing with the legacy of Brexit in with the other ‘tough choices’ which he talked about making in order to clear up what his government has inherited from the Tories, but chose not to. So for now, the country will continue to muddle along, despite all the damage, hoping that, somehow, if we don’t talk about it, Brexit will resolve itself or simply go away as an issue. It’s not a strategy, except in the perverse sense of a strategy of having no strategy.

Correction (made 31/8/24, 11.32): The 'calendar time' the government has been in power is of course (approximately) two months, not three as stated in the post! 

Many thanks once again for all the feedback, much of it extremely kind, in response to my question about the future format of this blog. I’ve decided to experiment with moving to a fortnightly post, still on a Friday morning. I will also write additional posts if anything important happens between the regular ones. Depending how that goes, I may change approach but for now it will be fortnightly. Thus the next post will be on Friday 13 September. 

The realities of sovereignty

One way of telling the story of Brexit is that it was sold to the British public as, and perhaps believed by its advocates to be, a project to regain sovereignty but without any economic costs and, even, with economic benefits. Since that was impossible, when it came to be delivered, sovereignty was prioritised despite the economic costs. Of course, there is a huge flaw in that story, which is that the idea that EU membership meant a loss of sovereignty and Brexit meant regaining it was simply false or, at best, as demonstrated in Anthony Barnett’s superb essay from 2018, based on a concept of sovereignty so dated and naive as to be worthless.

Nevertheless, for Brexiters, and perhaps many leave voters, it had a meaning, which had two, related but different, aspects. One was that a country should and could decide ‘for itself’ what rules to follow. The other, more blatantly nationalistic, was that this country, in particular could and would get ‘more for itself’ on its own than it could within the EU because, as Vote Leave insisted (see slide 10 of link), “Great Britain is a great country” with the fifth largest economy, G7 membership, a permanent seat on the UN Security Council, and significant intelligence and military capability.

Sovereignty in practice: latest news

What we are now seeing in abundance are the realities and limitations of those ideas of sovereignty, even within their own terms. It was already plain in the Trade and Cooperation Agreement (TCA) which reflects the way that the UK prioritised sovereignty over anything else. Thus what resulted was, in effect, a tariff-free deal for domestically produced goods and very little more. All of the currently emerging costs to industries and consumers flow from that, including the extensiveness of the checks needed to comply with the Northern Ireland Protocol (i.e. because a ‘deeper’ TCA would have meant a correspondingly ‘thinner’ Irish Sea border).

Norway non-agreement

The most obvious new example is the failure to reach a fishing deal with Norway, with potentially devastating effects on British cod fishing. Before, the UK benefitted from the agreements made between the EU and Norway, which is not part of the Common Fisheries Policy (CFP). Now, it must strike its own deal with Norway but has not been able to. This is an interesting development because, unlike negotiations with the EU, it is not presented in terms of Britain being ‘punished’ for Brexit or as a failure by Norway to recognize Britain as a ‘sovereign equal’. So a lot of the standard Brexiters’ rhetorical smokescreen is stripped away and the reality emerges: UK sovereignty is circumscribed by that of other countries, even quite small countries can and will resist the UK’s demands, and they are more able to do so now that it is not an EU member.

Jersey row

Fishing is also central to this week’s drama over the permits that, because of Brexit and in line with the fishing chapter of the TCA, French fishermen now need to fish in Jersey’s waters (it has arisen now because, until the end of April, there was an ‘amnesty’ under which the pre-Brexit arrangements continued). It’s a highly complicated story as all fishing stories are, but particularly so because of the distinctive constitutional status of the Channel Islands. Thus it is not actually about CFP, but it is about Brexit because the TCA superseded the Granville Bay Agreement, dating back to the nineteenth century but last amended in 2000, which had governed fishing rights in these waters. Scrapping it as part of Brexit was strongly lobbied for by the Jersey Fishermen’s Association during the TCA negotiations. Separately, the UK also chose to leave the 1964 London Fisheries Convention (causing problems for fishing around Guernsey, Alderney and Sark which have been more quietly dealt with by agreeing an extension of the interim arrangements with the EU).

Brexiters see ‘taking back control of our waters’ and being ‘an independent coastal nation’ as emblematic of regaining sovereignty. But the inevitable consequence is to encounter the sovereignty of other countries. For this was not, as some Brexiters are inevitably spinning it, a row with the EU but with France, although the EU is ‘siding’ with France in saying the permits are not being issued as the TCA says they should be (£) (the UK government disputes this – I do not know who is correct, but there are now talks underway).

This carries two lessons. First, that the EU will tend to stand up for its members against third countries, which is one of the ways sovereignty is magnified by membership. Second, it underscores that EU membership does not end national sovereignty. Nor is it necessary to leave the EU to engage in nationalistic posturing to appeal to nativist voters. Hence, with elections in both countries in prospect, foolish and ridiculous words from French politicians threatening to cut off electricity supplies to Jersey were matched by foolish and ridiculous actions from the UK in deploying Royal Navy vessels to observe what turned to be a rather limited ‘blockade’ of St Helier by French (and some Jersey) trawlers. For all the furore, the drama is already fading but it or similar rows have plenty of potential to flare up again.

At one level, all this is (just) yet another Brexit mess, and a reminder of how Brexit has thrown a rock which produces waves and ripples which are now showing up in small and large ways. Interestingly, despite the political rhetoric, as the participation of some of them in the blockade shows, Jersey fishermen are highly sympathetic to their French colleagues, recognizing that they’ve all been caught up in this mess. It also bears saying that as long ago as March 2017 the House of Lords EU Committee warned the government of the dangers Brexit posed for the Channel Islands. But my point here is that this episode illustrates the consequences of a free-for-all between ‘sovereign equals’.

Lugano Convention

This week’s third lesson in the realities of sovereignty, just announced though long-trailed, comes with European Commission’s recommendation that the EU should not accept Britain’s application to re-join the Lugano Convention on cross-border enforcement of legal judgments. Technically, membership is not confined to EU or even single market members, but the Commission’s view is that the UK’s relationship with the single market is now so distant that it should not be re-admitted to the convention. Inevitably this is described by Brexiters as ‘punishment’ but it’s actually no different in kind to the Norwegian fishing non-agreement: other powers have the right to decide not to agree to what the UK wants, and they will sometimes, even often, exercise that right. The eventual outcome will depend on whether the - yes - sovereign member states of the EU decide to follow the Commission’s recommendation.

It doesn’t even matter if, as some may think, the European Commission or Norway or France are miscalculating their interests: that is their prerogative. In fact, much of the Brexiters’ case was based on claims about what was and was not in the EU’s interests. Hence all the stuff about the UK trade deficit, German carmakers and so on. As a matter of fact, these claims were proved wrong – as many of us knew they would be – and the EU prioritised the integrity of the single market. Again, it’s irrelevant to argue that the EU ‘should have’ made a different calculation of its interests. Brexiters have to face the world as it is, not as they imagine it ought to be.

A permanent negotiation

This basic fact is not going to go away. What Britain now faces – not temporarily, but for the foreseeable future – is an ongoing process of negotiating with the EU and others, constantly facing choices about what it will sacrifice in the name of sovereignty, and constantly facing the reality that others have powers, rights and choices which they will exercise as they see fit. That is true both in general but also in relation to specific aspects of the TCA (Jersey fishing permits being a minor example) where there are phased implementations.

Currently, that means primarily the negotiations over the Northern Ireland Protocol (NIP). Several reports this week suggested that the EU is offering some flexibility in its implementation but within the basic parameters of the agreement, and proposing UK alignment with EU Sanitary and Phyto-Sanitary (SPS) rules. This, at a stroke, would remove many of the Irish Sea border checks. So far, the UK government still regards this as incompatible with sovereignty even though, at least for the time being, it doesn’t actually propose to diverge significantly from EU SPS standards.

The issue is, rather, that alignment means ‘dynamic alignment’ (i.e. when the EU rules change, the UK’s are bound to do so) and it’s this which would supposedly violate sovereignty. It therefore becomes a theological argument about whether the UK’s SPS standards are the same as the EU’s because they are agreed to be aligned or because they just happen to be the same at the moment. It’s true that the UK might want (or have) to change SPS as part of a future trade deal, especially with the US. But since, as has been emphasised this week by US Secretary of State Anthony Blinken, that is at best some way off, it is very hard to see why a temporary alignment with the EU could not be agreed.

After all, the UK government would be happy with, and is currently seeking, an ‘equivalence’ agreement (in other words, an agreement in which, whilst standards might not be the same in each market, they are deemed good enough for both). But that doesn’t work from an EU point of view, primarily because it involves a high-trust relationship with a third country that has not shown itself to be very trustworthy during the Brexit process, and about which there are lingering memories of the BSE epidemic as well as one with a shortage of Official Veterinarians (which also a problem for the current arrangements). Additionally, the volume of trade with the UK is much greater (and differently configured) than that of those third countries (such as New Zealand, which is the model usually touted) with which the EU does have SPS equivalence agreements.

And, again, if the UK were to decide, perhaps because of a trade agreement with the US, to substantially change its SPS rules then an equivalence agreement with the EU would presumably go out of the window anyway. Plus I think (I’m not sure – this is a horribly complex topic) that if EU SPS rules changed significantly then any equivalence agreement would have to be renegotiated anyway, so the practical distinction, on sovereignty grounds, between ‘dynamic alignment’ and ‘equivalence’ seems a fuzzy one. (For an excellent explainer of the concepts of dynamic alignment, equivalence and trade agreements in the context of Brexit, see trade expert Dmitry Grozoubinski’s ExplainTrade briefing).

In practical terms, then, dynamic alignment would mean the UK automatically changing the rules (or exiting the agreement) when EU rules changed whilst equivalence would mean re-negotiating (or exiting) the agreement. To any normal person this surely seems like some mediaeval debate about how many angels can dance on the head of a pin. It’s perfectly possible, and there’s just the tiniest sign of it, that what will be created is something which in substance is dynamic alignment but which the UK will call equivalence.

No coherent strategy

To re-iterate, whilst negotiating the operation of the NIP is the biggest immediate issue, the underlying one is that the UK-EU relationship is going to be the subject of a never-ending negotiation, and all the time the UK is going to have to make decisions about what to prioritise: the Brexiters’ peculiar version of sovereignty, or economic and political reality. That is inevitable simply because, like every other country in the world, but more so because of economic and geographic connection, the UK faces the reality of EU regulatory superpower deriving from market size.

It doesn’t seem that there is any coherent strategy for, or even understanding of, this from the UK government. For example, having made an issue of not recognizing the diplomatic status of the EU Ambassador to the UK, the government has this week agreed to do so. That’s the right decision, but by not making it from the beginning the UK squandered good will by posturing – for nothing. This is, precisely, a sign of an absent or incoherent strategy. The same will be true if, after marching up the hill of unilaterally breaking the NIP, the government quietly marches back down and accepts SPS alignment. If so, again it would be the right decision but reached via a foolish route.

Moreover, our relations with the EU cannot be separated from those with other countries for at least two reasons. On the one hand, the UK needs the EU’s support – political, diplomatic, and economic - in its antagonistic relationships with, especially, Russia, Iran and China. In this respect the recent ‘Global Britain’ Integrated Review was inadequate (see section five of link), since it barely touches on the UK-EU relationship despite it being a pivotal one. Though here, too, there are tiny signs of a more realistic approach quietly emerging.

On the other hand, the UK’s primary ally, the US, is deeply concerned with UK-EU relations in general, and the security and political situation of Northern Ireland in particular. This week saw the first face-to-face meeting between Dominic Raab and Anthony Blinken and though couched in diplomatic terms the message was clear: not only will the US not countenance anything that violates the Good Friday Agreement (translation: ‘Brexiters wanting to rip up the NIP, beware’) but it wants “political and economic stability in Northern Ireland” (translation: ‘make the NIP work’).

Irresponsibility or cynicism?

In the face of these realities, the question is how far the UK government is willing to push the Brexiters’ idea of sovereignty. The answer hinges on whether the government is irresponsible or cynical (most likely it will be ‘both’, but it needs to be ‘neither’).

If it is irresponsible then it will push on with the naive sovereignty agenda, making absurd provocations such as that of the EU Ambassador and silly gestures with Royal Navy ships, trashing its relations with the EU and the US by flouting international law, indifferent to the economic and political damage, and indifferent to the security situation in Northern Ireland. It may well do that if there’s no domestic political price to be paid or, indeed, a political benefit as a result.

If it is cynical, it will quietly yield on what to most people are arcane technicalities about, say, SPS whilst bigging up false claims about what Brexit has achieved. This would rely upon Brexiter MPs and commentators being gullible and ignorant, but that’s not a completely outlandish expectation. We’ve already seen this approach deployed with misleading or simply untrue claims about Brexit and vaccines, about freeports, and, most recently and perhaps most ludicrously, about Brexit enabling Britain to resist the aborted football super-league plans.

The UK-India ‘trade deal’

It is also evident in overblown claims about the UK’s post-Brexit trade deals. This was on display again this week when Liz Truss asserted that Brexit had allowed the UK to do a ‘trade deal’ with India. In fact, for the most part, it was a commercial deal of the sort that UK could, and did, make whilst an EU member, just as EU members like Germany have. It’s true that it also contained a Memorandum of Understanding (which may, though it’s by no means certain, eventually lead to a Free Trade Agreement with India), and that couldn’t have been done as an EU member. But the overall claim was misleading although, inevitably, jumped on by those Brexiters who don’t understand that the term ‘trade deal’ is an imprecise one, and not necessarily the same as a Free Trade Agreement, as a vindication of Brexit. In any case, the actual economic benefits of any eventual trade agreement probably won’t be very large, certainly compared with the loss of trade caused by exiting the single market.

These points about trade policy are boringly unoriginal, having been made endlessly in one form or another by many people, including me, for years. But they still matter, because the ongoing false claims about trade deals root back to the basic issues with which I began this post. That is, they pretend that ‘regaining’ sovereignty was not just cost-free but economically beneficial. So it is important to say that some of the claimed benefits did not require this ‘sovereignty’ whilst, overall, the costs are much higher than any benefits which may derive from it.

Moreover, it is important to confront the persistent slipperiness of Brexiters in the way that when challenged about the economic costs they very often resort to saying ‘you don’t understand, it wasn’t about the money it was about regaining our freedom, which is priceless’. But not only was that not how Brexit was sold in 2016, it is also not what is being said about the benefits of an independent trade policy. If Brexiters want to justify themselves in economic terms, then they can’t use ‘priceless’ sovereignty to escape a proper accounting.

But ‘we are where we are’?

I understand the view that ‘we are where we are’ and so there’s no point harking back to the false promises that were made. But I don’t accept it. For one thing, it is galling to hear so many Brexiters now wheeling out as arguments against Scottish independence precisely those they dismissed when made by remainers against leaving the EU. More importantly, the promises made in 2016 are not part of some remote past. Rather, they are only now, since the end of the transition period, actually playing out in terms of practical consequences. That is less than five months ago. So these are not dead issues and one way we know that is, indeed, because the Brexiters are still at such pains to churn out false claims to justify what they have done.

So if there is to be a ‘moving on’ and an acceptance that ‘we are where we are’ that has to start with an honest acknowledgment from the Brexiters – meaning, principally, the government – of where exactly it is that we are. And that means, even assuming that they may have done it in good faith (which requires considerable charity), acknowledging that this particular form of sovereignty they have created presents very serious problems.

If they are to be addressed, or at least ameliorated, it will require a patient diplomacy and a realistic recognition of the powers that other countries, and the EU, have and of Britain’s relatively (not, of course, entirely) limited power. In short, it requires the opposite of both the ‘cynical’ and the ‘irresponsible’ responses we currently see. I’ve mentioned in this post a couple of tiny signs this might happen, but I’m not holding my breath.

 

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My book Brexit Unfolded. How no one got what they wanted (and why they were never going to) will be published by Biteback in June 2021. It can be pre-ordered from Biteback, or via other online platforms, as a paperback or e-book.

Articles of faith

In the years before the Referendum – long before this blog started, so I haven’t kept links – I quite often came across pro-leave people explaining, usually in rather lofty tones, that leaving the EU would be very simple because everything was all set out in Article 50 of the Lisbon Treaty. Prior to that, there had been no formally defined exit mechanism. Its creation had been partly as a reassurance for the countries that joined in 2004, but it had the support of what were then called Eurosceptics in the UK in the hope that, one day, it would be their portal to ‘freedom’.

Invoking Article 50

If we have learned nothing else since 2016, it is surely that Article 50 offered only the broadest of frameworks for withdrawal, and “invoking” it was only the beginning of a complex process. So having so enthusiastically lauded Article 50 as the answer to their prayers, the most committed Brexiters actually approached it in a variety of quite contradictory ways.

One, espoused by the Vote Leave campaign documents (slide 11), was to say that “we will negotiate the terms of a new deal before we start any legal process to leave”, meaning prior to invoking Article 50. This was impossible (and rejected by the EU before the Referendum votes had even been counted) and was rarely mentioned again after the Referendum result. The second, espoused from time to time by UKIP, was simply to leave without invoking Article 50 at all. This would have been perverse, since it wouldn’t have made any of the issues involved in leaving disappear, though, quite astonishingly, it seems to be what Dominic Cummings still thinks could have happened, and he also believes the EU would have entered negotiations prior to triggering Article 50.

The third, soon dominant, idea was that Article 50 should be invoked as soon as possible, and that any delay represented backsliding and was the province of the “enemies of the people”, so immediate invocation became a test of Brexit fidelity. A final idea, which for many months Theresa May’s government, including at the time Boris Johnson, appeared to believe, was that both exit and future terms could be agreed within the Article 50 period. This was simply false.

The underlying mind-set

All this is old history now, but worth recalling because it reveals a mind-set which has not gone away and which is coming to the fore again. It was evident on the many occasions in 2018 and 2019 that Brexiters – including Rees-Mogg, Farage and Johnson – talked of ‘invoking GATT Article XXIV’ as a way of, supposedly, securing a temporary trade deal even if no exit (let alone trade deal) had been done. It was nonsense and, notably, although Johnson referred to it during his campaign to be Tory leader during an excruciatingly embarrassing interview with Andrew Neil, he never mentioned it after that. But the same mind-set is on display now in the numerous calls and threats to ‘invoke Article 16’ of the Northern Ireland Protocol (NIP).

What is the mind-set? I think it has three, related, aspects. One lies in the image it conveys of the UK having unilateral control – it ‘invokes’ things and, as such, appears to be the active party without having to have regard for other players, notably the EU. The second is that, for all their supposed disdain for expertise, Brexiters are adept at using what to the general public sounds like ‘expert jargon’ which, when delivered in dismissive or authoritative terms, gives the impression of great mastery of technical detail when, in fact, none exists. Thirdly, and perhaps most importantly, it suggests that there is a quick and easy short-cut to solve complex and intractable problems.

As regards the NIP, it is now abundantly obvious that Johnson’s government also saw that as a short-cut to ‘solving’ Brexit, without understanding or caring what it meant. The same goes for the Brexiter MPs and MEPs who voted for it in the British and European parliaments, although some of them seem to have persuaded themselves, or been persuaded by others, that it would lapse once a trade agreement was reached. Hence, even now, dullards like Iain Duncan Smith say (£) that the NIP was “always seen by both sides as a temporary solution”. This is a flat-out falsehood. Unlike May’s ‘backstop’, this was a ‘frontstop’ agreement that existed permanently and independently of any trade agreement or of there being no trade agreement at all. The two were connected only to the extent that had the trade agreement been a ‘deeper’ one, then the nature of the Irish Sea border would have been correspondingly ‘thinner’ (e.g. in terms of the extensiveness of checks).

Invoking Article 16: and then what?

Whether it was always intended or only later decided that the NIP would be reneged upon, the idea that ‘invoking Article 16’ offered a way out of what had been agreed first surfaced as early as January 13 2021, when Johnson spoke of doing so in the House of Commons. That date is of note for two reasons. Firstly, because it was less than two weeks into the actual operation of the NIP, showing how early it was being threatened (and, of course, Johnson and others had denied from the outset that the NIP meant there would be an Irish Sea border). And secondly because it predates by two weeks the EU’s own short-lived and abandoned threat to invoke Article 16 over vaccine supplies, of which Brexiters and the government now make so much.

As I wrote at the time, that was a major blunder by the EU, with no justification. Even so, and apart from the fact it never happened, what it would have meant has been heavily misrepresented. It would not have meant creating an Ireland-Northern Ireland border, as some Brexiters now claim, but only that vaccines destined for Northern Ireland would never have left the factory in Belgium. Moreover, it would have been a specific measure to deal with a particular and unforeseen emergency. In this, even as a possibility, it was entirely different to the way that the Brexiters, and the government, are now talking about how the UK might try to use Article 16.

What that talk seems to suggest is that Article 16 would allow the UK unilaterally to suspend the entirety of the NIP or even unilaterally to disapply the NIP. As Professors Katy Hayward and Dave Phinnemore of Queen’s University Belfast explain, neither of these is the case. The UK would need to identify ‘serious’ problems which were ‘unexpected’ and ‘likely to persist’, and the proposed solutions, for consideration and discussion by the Joint Committee. Diversion of trade is one possible problem which might be identified – and Frost’s recent statements seem to imply it is the one upon which the UK might base an Article 16 invocation - but it can’t just be that which was to be expected because it is inherent in the agreement. It certainly isn’t the case, as, again, Iain Duncan Smith recently claimed (£), that diversion is “forbidden” by the NIP. And most certainly Article 16 isn’t a way of just saying ‘we don’t like this agreement’: its terms would continue to exist, and many of them would continue to operate.

So, rather as with invoking Article 50, it would be the beginning of a process (though not one leading to ‘exiting’ the NIP). Thus whenever invoking Article 16 is proposed, the crucial question that should be asked is: and then what? The answer, inescapably, is further negotiation with the EU, but if that has failed to give the UK the outcome it wants without using Article 16 then it is no more likely (probably less likely) having done so. So what then? Rip up the NIP entirely, with all that will mean for possible trade sanctions from the EU, and, at the very least, diplomatic rows with the US? And, still, what then?

Article 16 can’t solve the deeper problem

For the deeper problem in all this is the same one that has existed since, at least, the UK government decided in January 2017 that Brexit meant hard Brexit. If the UK is to be outside the regulatory regime of the EU single market and the tariff regime of the customs union then the UK itself needs a border just as the EU does. So where’s the border? That question has no easier answer now than it had in all the years since 2017 during which endless models were proposed. The NIP is the least-worst answer that anyone could come up with which both sides would agree to.

The recent spate of self-serving tweets from Dominic Cummings on this subject is again instructive. Although he affects disdain for the ERG, his account is precisely that which most of them have been peddling for years, namely that the Irish border issue was a minor or even non-existent one, and only achieved prominence because of the weakness and incompetence of May’s government and its acceptance of what Cummings calls the “babbling” about the Good Friday Agreement. Had what he calls “we” (apparently meaning the Vote Leave team) been in charge, the UK would just have refused to erect borders and if the EU did then so be it: the integrity of the single market was the EU’s problem, not the UK’s (he still doesn’t seem to realise that the UK needed a border as well). By the time Johnson and Cummings came to power, it was too late and what they both childishly call the ‘Surrender Act’ (meaning the Benn Act) prevented resurrecting a hardball approach, hence the NIP with its associated Irish Sea border. This, of course, rests on the preposterous idea that a no-deal Brexit, which would have damaged the UK far more than the EU, constituted negotiating leverage had the Benn Act not prevented it.

As I say, none of this is new and I’ve catalogued it as the boilerplate position of the Brexit Ultras endlessly on this blog, as well as explaining why it was unrealistic. Apart from anything else it ignores the fact that David Davis thought pretty much exactly the same things, but found that they were unworkable, including the fantasy of an Article 50 pre-negotiation, the denial of the reality of the Irish border issue, and the delusion that Ireland was only a minor player. In short, most of Cummings’s ‘hypotheticals’ are already discredited. More generally, what developed into May’s deal wasn’t a result of the Ultras’ approach not having been tried, but of it having been tried and failed. So it is only of passing interest, and no surprise, that Cummings himself has confirmed that he shares their analysis of the Brexit process and clings – in a way reminiscent of those who used to defend the USSR as not being ‘real’ Communism – to the idea that ‘it just wasn’t tried properly’.

Frost’s flawed logic

Cummings is irrelevant now, hence he has the time to re-litigate the events of the last few years in his barrage of tweets and blogs. But what remains highly relevant is that his analysis is shared by David Frost who, of course, was one of the Cummings’ group when the NIP was negotiated. Frost may not have brewed the Kool-Aid (his skills, to the extent they are discernible, appear to be emulative rather than innovative), but he certainly drank deeply from the cup. So Cummings’s statements underscore the fact that Frost, like all the Brexit Ultras, doesn’t accept the need for the NIP or the validity of the process that led to it. Moreover, it underscores his commitment to the fanciful idea that playing ‘hardball’ pays dividends – the belief, for example, that the illegal clauses in the Internal Markets Bill paved the way to a trade deal being struck (in fact, they nearly scuppered it). The corollary of that belief is a refusal to accept that the UK losing the trust of the EU – and more widely - matters, or is even a relevant concept.

The reason this is so crucial is that it confirms something which, as I’ve argued before, I think many pundits misunderstand about Frost’s approach to the NIP. It is not ‘playing to the domestic gallery’ and it is not intended to be, though of course may end up being, a prelude to a climbdown with the EU. Like every bull market sucker, he genuinely believes that ‘this time’ it will be different. If I am right, then Frost is not making the current hard pitch as a route to a subsequent compromise giving him much but not all of what he demands, but believes he can have those demands met pretty much in full.

This seems to be confirmed this week by the government’s immediate rejection of the EU’s proposals for some flexibilities in the application of the NIP as inadequate. It also explains why Frost isn’t doing anything to build trust with the EU in the way suggested in a wise analysis of the situation by Maddy Thimont Jack of the Institute for Government this week. For, wise as it is, trust plays no part on the Frost-Cummings-Game Theory 101 approach to negotiations. It does, however, matter in the real world, and lack of trust in both the UK in general and Johnson in particular is the central stumbling block to Frost’s recent proposals being accepted when viewed from an EU perspective.

Moreover, the antagonistic atmosphere Frost has created arguably partly explains the European Commission’s refusal to recommend that the UK be allowed to rejoin the Lugano Convention (as readers of this blog will be aware). It certainly won’t have helped. Nor is it likely to help in the re-emerging disagreements over Gibraltar. More generally, Frost either doesn’t understand or doesn’t care that it is in the nature of Brexit that the UK will, permanently, be in negotiations with the EU about something or other. Eviscerating goodwill in such circumstances is extremely foolish.

So what now?

Coming back to the NIP, in her characteristically excellent assessment of the present situation, Professor Katy Hayward suggests that Frost’s strategy “simply deepens the hole that the UK has dug for itself”. She argues that the EU has three possible responses. One would be simply to accept all or most of the UK’s demands, but she is surely right to think this highly unlikely. The second would be to take some form of retaliatory action (introduction of some tariffs, exclusion of UK from some programmes). The third is to continue to try to negotiate within the framework of the NIP, as so far continues to be the case.

That might also go alongside a more minimal acceptance of Frost’s demands to the extent of further extensions of the various grace periods. This seemed likely to happen anyway, and even more so now that the EU have announced that it will, as Frost requested, pause the legal action over those grace periods the UK unilaterally extended last March. As I flagged in my previous post, last week it was being reported that the action would proceed to the next stage by the end of this month.

The logic of Frost’s position (assuming, again, that I have read it correctly) would be to respond aggressively to any retaliations, and to bank concessions on the grace periods, regard them as proof that his ‘tough’ approach works, say they don’t go far enough, and invoke Article 16. As noted above, the latter wouldn’t solve anything but it would escalate the political crisis – which is the only direction that the Frost logic points to. In that view of the world, as soon as you back down, or even compromise, you’ve lost. That is what – as Cummings’ statements show – the Ultras think happened repeatedly post-2016 and they won’t do it again. But there is ‘a but’.

Which way will ‘shopping trolley’ Johnson veer?

The analysis that all would have been fine if only the politics of the 2016-2019 period hadn’t prevented the Brexit Ultras’ strategy working is inadequate for many reasons, including its failure to understand basic realities about the EU and the single market. But it also contains its own contradiction in imagining that the Brexit process could ever proceed separately from ‘politics’ or, as Cummings puts it, ‘SW1’ (meaning, I suppose, the entirety of the politico-governmental system). So if Frost’s logic escalates the present tensions with the EU into a huge crisis, politics may well intervene decisively in the form of Johnson.

I’m sure that, in his way, Johnson buys in to the simplism that runs through the Cummings-Frost thinking, just as he once believed that both exit and trade deals could be done as part of the Article 50 process, and that GATT Article XXIV was a get out of jail free card. However, it’s hardly a startling insight that Johnson believes deeply in very little, but cares greatly about his own position and advantage and that on policy, as Cummings puts it, he veers about like a wonky shopping trolley.

So the ‘but’ for Frost’s approach is whether, when it comes to it, he will get Johnson’s support or whether he will join the long list of those Johnson has betrayed. In answering this question, clearly any issues of principle or loyalty can be discounted. Far more shamefully, it seems unlikely that any concern for peace and security in Northern Ireland will figure highly in Johnson’s priorities. On the other hand, if there were intensified pressure from the Biden administration that could matter.

What might be most relevant, though, is the sharp recent decline in the Conservative’s opinion poll ratings and Johnson’s own approval scores.  If this is still continuing come an autumn crisis the calculation may be whether a major confrontation with the EU will be popular with the electorate or not. It would certainly appeal to his voter base, and to many of his MPs. It might bring back some of his public support. But it might alienate a larger number of voters, not least since Johnson was elected on the promise that he would ‘get Brexit done’ and yet here he is, still negotiating the terms of the deal formerly known as oven-ready. In particular, it might alienate the type of Tory voters who deserted Johnson in the recent Chesham and Amersham by-election, and alarm his already “jittery” backbenchers (£). If also facing the kind of Labour post-Brexit strategy I discussed in last week’s post, which seems increasingly in prospect (£), Johnson might well conclude that, as regards the NIP, discretion is the better part of valour.

How such calculations play out obviously remains to be seen, but since so much of Brexit has been more about domestic politics than Britain’s relationship with the EU it wouldn’t be altogether surprising if it were to be so again. So it’s not impossible that Frost may soon be joining Cummings in having many spare hours in which to tweet about how Brexit would have been a huge success if only he had been allowed to do it properly.