London has spent three years refusing to confront the real Brexit choices on offer. Will it continue to do so right up until 31st October?by Peter Foster / September 2, 2019 / Leave a comment
How did Brexit become a “do-or-die” project deliverable only through an abrupt divorce that threatens to do lasting damage both to the economy and the constitutional integrity of the UK? Back in 2016, neither the official nor the unofficial Leave campaigns advocated crashing out—instead, the expectation was that the UK would negotiate a close partnership with our European neighbours with an orderly transition to the new terms.
Changing from that course should have required a deliberate choice. National sovereignty was, after all, the animating ideal behind Brexit: Britain voted to “take back control.” Life would not necessarily be easy outside the EU, but at least the UK would be free to make its own decisions.
But looking back at the last three years, the most striking aspect of the way London has played its hand has been its reluctance—even its inability—to make any real choices at all. Doors have been slammed on viable options, negotiations fumbled for lack of direction and hard choices consistently ducked.
Theresa May did occasionally make quiet concessions to reality, but found it almost impossible even to settle on a cogent negotiating position, never mind pull off all the political manoeuvres and persuasion required to make it stick.
Boris Johnson, by contrast, noisily insists that he has made his choice—to prioritise departure on 31st October above all else. In August, he zipped across to the continent, made nonchalant noises about Britain’s ability to cope with a no-deal departure, and, in effect, told Angela Merkel and Emmanuel Macron that if Europe wants to avoid this, it needs to rethink its own red lines.
Tabloid headline-writers might call this resolve, but the prime minister continues to pass over many of the real choices confronting the country in silence. He still cannot explain how he actually expects Brexit to work, or how he would approach the subsequent negotiations with the EU as a non-member.
At least for the next month or two, he will continue to face the same practical dilemmas May was unable to resolve; and he will be operating under many of the same political pressures, too. In figuring out where Johnson is actually taking Britain, then, it is as well to start by looking back at how we got here.
After the shock of the 2016 referendum, EU leaders looked at May and thought they saw a sensible, middle-ground woman with whom they could do business. European diplomats recalled her as a pragmatic home secretary who, even though she opted out of 130 EU law and order measures, successfully faced down Eurosceptics like Bill Cash and Jacob Rees-Mogg by opting back in to the European Arrest Warrant. Hardliners decried this compromise as an affront to national sovereignty, but May had stood her ground—and won.
“What was left?” asked one diplomat.
“The North Korean model?”
Having campaigned for Remain, though, May now felt a burning need to persuade her doubting party that she would truly embrace Brexit. At her first party conference as leader, she ruled out a huge range of possible future relationships. Britain would be leaving the jurisdiction of the European Court of Justice for good, she said. On the eventual future relationship, she slammed shut nearly all the doors, explicitly rejecting the Norway model and the Switzerland model. “What was left?” asked one EU diplomat at the time. “The North Korean model?”
Jean-Claude Juncker, the Commission president, told British diplomats that he had read May’s speech three times, just to be sure he was not mistaken. But her words could only mean one thing: for all the soft soap about forging new ties with old friends, the UK was heading for a very hard Brexit. Europe had been put on notice—and it was on guard.
Did May understand what she was doing? Conceivably not. After all, her famously possessive political aides, Nick Timothy and Fiona Hill, kept the conference speech text away from her senior officials, including her top man in Brussels, Ivan Rogers. Later, Rogers recalled meeting May and saying that at least there was now clarity—she was ruling out the customs union and single market. Yet the prime minister baldly replied that she had ruled out “no such thing.”
Still, it seems unlikely that May, a hard worker and a stickler for detail, could really have failed to grasp that all the independence she heralded would undermine the “mature, co-operative” future trading relationship she had simultaneously promised.
A more plausible—if unkind—reading would be that she wasn’t thinking about diplomatic realities but domestic advantage, by trying to pacify Brexiteer Tory MPs and the Europhobic media voices that have dominated the British debate for so long.
The only remaining logical alternative is that May truly believed she could cherry-pick an independent UK trading relationship with Europe, just as she had cherry-picked the security relationship. As a member state of the EU, the UK had always received exceptional treatment. May might have thought she could replicate this as a non-member state. That would prove to be a fatal miscalculation.
She kept on digging at Lancaster House a few months later when, in a set-piece speech supposed to provide clarity, she only injected more confusion. Bouncing disorientatingly between conciliation and confrontation, she told the EU that the decision to leave “represents no desire to become more distant to you, our friends and neighbours”—which was obviously untrue—and then threatened to turn Britain’s significant contribution to EU security into a bargaining chip. The speech also contained the first use of the phrase that would heighten European anxieties, and come to haunt the whole process: “no deal for Britain is better than a bad deal for Britain.”
May did bow to one reality: that, in order to end free movement of people, the UK would have to leave the single market. This was the central aim of many Leave voters, and one which her “hostile environment” policy at the home office suggested she sympathised with. She also signalled that she wanted to leave the customs union to strike new trade deals with the rest of the world. Yet she still insisted she wanted “frictionless” trade with the continent. And, on Ireland, May promised “no return to the borders of the past”—without acknowledging that it was the single market and customs union that had made the dismantling of those old borders possible.
Given that no one in British politics or media had thought seriously about trade policy in the 30-odd years since the completion of the EU’s open-border, open-skies single market, these stark contradictions were ignored at home. But for Brussels, where the legal and practical foundations of frictionless trade are well understood, the need to keep a firm grip on the negotiations acquired a new urgency.
Errors of process
Immediately after the 2016 referendum, Brussels had hastily established a common defensive position: “no negotiation without notification” of Article 50. One of the most fateful commitments in May’s nationalist conference speech was—ironically—to fall into line with this request by the end of March 2017.
Whitehall was alert to the dangers. Privately, Rogers warned that it might take a decade to agree the future relationship, and that it would be dangerous to allow the fixed two-year timetable of Article 50 to govern the divorce before clarifying the UK’s “end-state” objectives. But the political pressure on May to demonstrate she was “getting on with the job” was too strong. Rearguard efforts by Rogers and Olly Robbins, then permanent secretary at the Brexit department, to stop May from boxing herself in on the timetable failed; the subsequent leaking of Rogers’s private warning to the BBC set in train his resignation. But that didn’t detract from the force of his point. From this moment, every time the UK asked for something the EU did not want to concede, the EU could sit on its hands. “The clock is ticking,” Michel Barnier, the EU’s chief Brexit negotiator, never tired of reminding us.
Having triggered Article 50, May chose to spend two of her precious 24 months fighting a self-wounding general election campaign. She presumably wanted a bigger majority to impose a more realistic deal, but still lacked the bottle to confront the Brexit purists. Her manifesto presented a fantasy confection of a hard-edged pledge to leave the single market and customs union with a soft-centred promise of a “deep and special partnership.” The election outcome—a minority Tory administration propped up by the Democratic Unionist Party—should have given pause for thought. A different leader might have reconceived Brexit as a national project that would require support from both sides of a divided House. But that was not Theresa May. She carried on as if, in her most notorious phrase of the campaign, “nothing had changed.” And when the talks belatedly began, alas, nothing did.
The procedural missteps weren’t only on the UK side. Brexit secretary David Davis was derided for promising the “row of the summer” over the EU’s plan to impose strict “sequencing” on the negotiations—before the UK folded in a single day. But Davis had a point. The EU flatly refused to discuss the “future relationship” until London had first demonstrated “sufficient progress” on the “legacy” questions: the rights of EU citizens living in the UK; the financial settlement; and, more controversially, the Irish border.
To this day, one imponderable is whether the EU made a strategic mistake by including the Irish question among the first-phase issues. Since the question is about a trading border, London argued that it fitted logically in the talks about a future relationship—an argument Johnson has now returned to. Some other member states agreed: “It was clear that you cannot discuss Northern Ireland without the future relationship,” said one EU ambassador at the talks. Failing to allow for that “made sense for the Irish,” but was “in hindsight… probably a mistake” for Europe as a whole.
Lost in the Haze
During the summer of 2017, there was progress on money and citizens’ rights, but the Irish border issue loomed unresolved. Sometimes the UK would advance solutions—as in its August working paper on customs arrangements—but Europe (and much of Whitehall) regarded these as evasions. One wheeze, so-called “MaxFac,” relied on unspecified technology to exempt most Irish border trade from checks, anathema to an EU concerned about the single market’s integrity. Another fancifully relied on the EU and UK collecting tariffs on one another’s behalf—in a world where Britain would be using its new trade deals to undercut European competitors. “Even if the technology could be made to work,” one EU negotiator fumes, “in what world did they think we’d ever agree to that?”
“We didn’t want
to weaken May”
The EU initially dismissed such “fantasies.” But it didn’t want to push the painful choices too hard. After May had been weakened by her misfiring election, officials recall how they were always conscious that they judged the likely political alternatives in London—Jeremy Corbyn or a populist hard Brexiteer—as worse than her muddled administration. As one diplomat present in Article 50 ambassadors’ meetings recalled: “With -hindsight, perhaps we should have just come out and said these ideas were total rubbish and refused to proceed any further. But we didn’t want to weaken May, so everyone kept talking around it, saying, ‘We can’t do this or that, or we’d undermine her further.’ Maybe, looking back on it, that was our mistake.”
“We all wanted to
get home for Christmas”
One UK official recalls, “We all knew—us, the EU, the Irish—that the technological solutions didn’t exist.” A second adds: “We still hoped that even if unicorns did not exist, we might be able to get by with a horse with a shell stuck on its forehead.” The final text of the December 2017 joint report—the document which allowed the talks to progress—simply lumped all the unanswered questions together. Paragraph 49 promised that the UK would remain in “full alignment” with EU rules, while Paragraph 50 promised Northern Ireland the “same unfettered access” to the UK’s internal market as now, and all without May having to disavow her promise to quit the customs union and single market. Europe’s writ wouldn’t reach Britain, and yet there would be a near-frictionless Channel border and no Irish Sea border at all: this was an illusionary MC Escher Brexit. Asked how it could all be reconciled, one German diplomat laughed. “It’s obviously nonsense. Just a pile of contradictions, but we all wanted to get home for Christmas.”
If there was ever any hope of fudging the future, then Davis’s dismissal of the text as a legally unenforceable “statement of intent” only stiffened EU resolve to demand clarity down the line. The next crunch, however, came within Britain. After another six months of this wilful ambiguity, the cabinet gathered at Chequers in July 2018 for a “showdown” summit. It was billed as a lock-in, where no one could leave until real decisions were made. Downing Street even told ministers’ drivers to make themselves scarce: anyone who resigned would have to take a taxi home.
Brexiteers feared they would be bounced because the joint report had been pretty clear on one thing: a seamless solution to the Irish border problem needed you to stay in the customs union and remain aligned to the EU single market for goods and agriculture. The only alternative was to put Northern Ireland in a special arrangement—something the EU had offered, but which was never going to fly in London given the government’s -reliance on the DUP.
May’s problem was that, having failed for months to challenge the hard Brexiteers about the need for alignment, they could cheerfully maintain that technology could fix the border, enabling the whole UK to leave “cleanly” and with an independent trade policy. Without that solution, they chorused, we’d be left with “Brino”: “Brexit in name only.”
Thus the original Brexit narrative about “sovereignty” became entangled with a buccaneering tale of go-it-alone free trade. Those in government like chancellor Philip Hammond—who knew very well that the smooth trade facilitated by close alignment with Europe would always be worth far more than any deals with other, far-flung economies—still imagined they could shake British politics out of its complacency by stealth. But as one Whitehall insider ruefully reflects: “we failed to make the economic case,” for the real deal on offer, and “instead just continued with fantasy proposals.”
Chequers did not deliver the promised clarity. The so-called agreement there (in truth, a British political stitch-up) accepted the need for regulatory alignment with Europe, which the EU side did see as a step forward, but once again fudged the customs question by re-tabling one of the “fantasy” customs plans the EU had already rejected. Like a sapper crossing a minefield, May was still doing her best to poke and prod her way past the competing cabinet factions; but even here she failed. They agreed to her mish-mash, but Davis resigned the next day and Johnson, sensing which way the political wind was blowing, soon followed. While May’s cabinet crumbled, the EU looked on unimpressed. Simmering irritation boiled over when leaders met at Salzburg in September, and Donald Tusk, president of the European Council, told May directly that her customs plans “would not work.”
After another few months a real deal with the EU did emerge, but one forged by gravity, not strategy. It agreed to an interim “single customs territory,” in which all of the UK would remain in the EU customs union if the Brexiteers’ hoped-for “alternative arrangements” for the Irish border were not in place by the end of the two-year transition. But Sabine Weyand, the EU’s deputy chief negotiator, was plain that those arrangements—if they ever did come to exist—would not work “in the next few years.” Whitehall knew this too, which is why Robbins was overheard by an ITN journalist in a Brussels bar this February saying that it had initially thought of the now-infamous backstop not as an insurance policy, but rather as a “bridge” to a closely-aligned future relationship. By the time his words emerged, hard Brexiteers had already sniffed out a customs union that dared not speak its name.
To get her deal, May had conceded on the substance; in return, she asked European leaders to help her with the spin. At May’s request on 25th November 2018, they dutifully trooped out to the waiting cameras to say that the 585-page agreement was, as Juncker put it, “the best possible deal and the only deal possible.” But back at home, May did not have enough MPs in a parliament where the hard Brexiteers had now come to regard an independent trade policy as non-negotiable, and as important as the end of free movement.
The PM called on Europe for one last desperate attempt to sell the deal, demanding at the December Council that the EU signal its readiness to conclude a trade agreement during the transition, meaning the backstop would never come into force. But when pressed on what kind of trade agreement that would be, May could not give a coherent answer. Juncker described her response as “nebulous,” provoking the beleaguered PM to accost the commission president in the council chamber the next day. But Juncker was right. From the off, Britain had tried to build a negotiating strategy on top of a cloud of confusion.
The “meaningful vote” was delayed to January, when it went down in the Commons by an unprecedented 230 votes. And despite late EU window dressing to present the backstop as merely temporary, May’s margin of defeat remained substantial in two re-run votes. And thus, by the spring, it had become clear that both sides of the Brexit negotiations had miscalculated. The “constructive ambiguity” of the negotiators had proved to be destructive.
Could things have turned out differently? Possibly. Had May confronted the customs argument earlier, she might have had more success in making it. But the PM’s cowardice or—in the kinder words of one former cabinet minister—her “underestimation of her own political strength,” meant that no coalition for a balanced “52-48” deal could ever be forged. After 18 months of obfuscation, the only majority was a negative one, as both anti- and pro-Brexit camps united to block May’s deal.
For its part, Europe could have forced clarity on the British at the December 2017 joint report. It could also, conceivably, have forced the UK’s political crisis to an earlier and perhaps more satisfactory resolution by playing tough on extending Article 50 this spring.
Ultimately, though, it was not process but deeper realities that doomed the deal. Yes, some of the Irish discussion might have been postponed—but that would merely have pushed problems down the road, not resolved them. Diplomatic sophistry was never going to transcend the Irish trilemma: the UK’s mutually incompatible promises of leaving the single market and customs union; the refusal to accept a new sea border; and its rejecting of any “return to the borders of the past.” Those three promises could never all be honoured at the same time. A choice needed to be made, not ducked. For all her procedural missteps, May’s Brexit deal foundered on the substance, or rather the lack of it.
Johnson and his cabinet of Brexit true believers are now pushing for departure at any cost on 31st October, but make their own impossible demands in the process. The withdrawal agreement has been declared “dead,” and Johnson is currently ruling out even a time-limited backstop, something which—until recently—Brexiteers whispered might provide the reassurance they needed. In any case, Europe says that concession is not on the table.
Some officials fear that No 10’s game is now to look busy while running down the clock. Johnson certainly offers the appearance of much activity: the letter to Tusk making a hollow offer to engage over long-since rejected “alternative arrangements” to the backstop; eye-catching stories on quiet Sundays about a “sectoral” approach to the talks (floated without acknowledging that this is what Chequers attempted); brainwaves about somehow regulating international trade via domestic criminal law (aired free of any worry about whether the EU would trust this solipsistic British government to police it in Europe’s interest).
For Johnson, the sense that things are happening is useful. It may distract potential rebel MPs, and will certainly lend credibility to the thought that—as and when a negotiated exit becomes impossible—the PM tried his best with the stubborn Europeans. European politicians, too, have an eye on the blame game. If things end up going wrong, Angela Merkel will also look better for having made a conciliatory-sounding offer of keeping an open mind about ideas Johnson might come up with “in the next 30 days”; better, anyway, than she would if she’d just told him to get lost. But don’t be deceived by British headlines into imagining she has high hopes for his inventive genius. His suspension of parliament looks like fresh evidence of a lack of interest in even discussing detailed propositions, never mind finding the time to debate and then agree a new formal deal.
Is it nonetheless still possible to imagine real, 11th-hour -concessions on the detail to salvage some deal? In private, some European diplomats don’t rule it out. But this would involve Johnson making a few cosmetic amendments to May’s pig of an agreement, then having to sell the transformation as a great success. The more he parades his willingness to walk away, the harder this becomes to pull off politically at home. And the prospective domestic difficulties matter on the diplomatic front too. The EU will only re-open the withdrawal agreement, even for tweaks, if Johnson can first demonstrate to a doubtful Europe that a compromise would be backed by a parliament which he shows no sign of seeking to persuade.
Europe now sees a second scenario as the best hope of avoiding a crash-out—one in which Johnson runs headlong towards the no-deal cliff edge, only to be stopped by parliament and forced into a general election (either before Halloween or after being strong-armed into seeking another Article 50 extension). What happens after this election is anyone’s guess, but at least that would be tomorrow’s problem.
Rupture from reality
Of course there is a third alternative: no deal itself. This would be a brutal rupture with Europe, one that would separate—at a stroke—economic and political roots that have become intertwined over 46 years. The government knows how disruptive this would be for trade, which is why its own Operation Yellowhammer no-deal plans—leaked to the Sunday Times in August—discuss shortages of food, fuel and medical supplies, and lorries facing long delays in the first few months.
But there would be more enduring consequences, too. No deal would forsake the offer of an orderly re-wiring of the relationship during a legal transition period, and just rip all the existing wires out of the wall. Only then, as the sparks fly, will both sides decide which bits to reconnect. The approach sounds precipitous, but the Brexiteers are right that it would—for better or worse—provide clarity, including about the Irish border. No deal would choose an all-UK Brexit and an independent trade policy at the expense of a return of a trade border in Ireland. Brexiteers quietly admit as much, while downplaying the jeopardy to peace in the Province.
Johnson asserts that this border can be resolved technologically in the same fashion as the post-Brexit Dover-Calais border, but with checks made less intrusive. The PM says carefully that there will be no checks “at” the border, deliberately leaving the door open to checks set back from the border. And a border it will be, since the EU is clear that Ireland will quickly need to install an operable border to protect the single market—even if it is set a few miles back from the wiggly line itself.
London insists it would not put up a border on the Northern side, and instead talk to Dublin and Brussels. But its own Yellowhammer documents anticipate the return of a hard border, and acknowledge that its immediate plans to avoid widespread checks will be “unsustainable.” Does the prospective distance between the new customs apparatus and the political boundary make it less provocative? Don’t bet on it: the old customs park in Newry was six miles from the border, but still a target for the IRA.
As the checks begin, Brexiteers’ insistence that the border issue was confected by Dublin and Brussels to trap the UK in a customs union will be sorely tested. A no-deal trade border would mean customs forms, warehouse inspections, checks, frictional costs and smuggling; it would also mean, for example, an 18p-a-litre tariff on all milk flowing south across the border for processing. According to one official with knowledge of no-deal planning for Northern Ireland, farmers will soon be “spraying milk on their fields.”
soon be burning.”
The Northern Ireland economy office suggests that some 40,000 jobs would be at risk. London’s own no-deal planning, officials say, also assumes businesses would close. The British government has said it will allow goods to flow tariff-free from the Irish Republic. But that would mean Northern Irish farmers being thrown under the bus. Or as Declan Billington, a respected former chair of CBI Northern Ireland, puts it, “Not thrown under the bus. Thrown under the convoy of European lorries bringing tariff-free food into the UK via Northern Ireland, driving past the Northern Irish farms that have no export market in Ireland or Europe. Good luck with cross-border relations with that one.” Which is why you’ve got to wonder whether the Brexiteer’s clean-break unilateral free trade could ever work. Some officials think there is a good chance that Northern Irish farmers will try to barricade those roads—as one puts it, “tyres will soon be burning.”
Brexiteers will dismiss this as Project Fear. It is a projection, but one that comes from those closest to the ground. It is surely incumbent on Johnson to take a considered view of it before pushing the button on no deal. He should also pause and consider broader decisions the UK would face in the cold outside the EU. Perhaps Britain will be content to brave the chill. But if the costs in terms of trade, investment and supply chains turn out to be heavy, then the appetite for isolation from Europe could prove limited. Finally, we would have to face the realities we have spent over three years evading. Britain would then have to start negotiating back towards some form of accommodation and alignment. But London would now be haggling without a legal roof over its head, handing the EU even more leverage. As the UK tried to “take back control” through no deal, it would ironically be less in control of events than before.
Brexiteers dream of a “quick and dirty” Canada-style Free Trade Agreement with Europe, pending deeper negotiations. But the UK is not Canada: the “geographic proximity and economic interdependence with the EU27,” EU guidelines say, make the undercutting of European rules on competition, tax and social standards much more of a worry. Consequently the EU will need more intrusive terms with Britain to guard against that. Besides, unless Northern Ireland is put in a special arrangement, which both Johnson and the DUP say would unacceptably divide the UK, a “Canadian solution” still requires that hard border in Ireland. So in reality, Europe will offer nothing without strings. The moment negotiations begin, the “clean-break” Brexit will prove a chimera.
No deal will be followed by intense and prolonged haggling, with the UK haggling on its knees. Even now, however, London’s head remains stubbornly in the sand: officials are discouraged from gaming through the real options for a no-deal world, lest they leak out and appear dispiriting.
The general situation is chilling enough. But it is worth coming back to the coldest reality: the Irish border. Absent the (unlikely) return of Northern Ireland’s devolved government, no deal will—the experts say—require the re-imposition of direct rule from London by law. In a province where, despite the pro-Brexit DUP, a solid majority voted Remain, this will be seen effectively as legislation to suspend the Good Friday Agreement.
This will surely test Johnson’s assertion that the Irish border can be resolved in the same way as Dover-Calais. Will Sinn Féin and the nationalist community merrily summon the Blitz spirit, as the Churchill biographer in No 10 will no doubt urge? Or will they instead do everything to frustrate the delivery of a no deal that instigates the economic repartition of Ireland in the name of delivering an English free-trade Brexit?
Brexiteer bluster overlooks the fact these are, at root, questions of identity, not technology or economy. Johnson may think civil unrest is a manageable risk that will gradually subside. Perhaps that assessment will prove correct; but then again, perhaps not. If not, then, as David Cameron observed of Brexit, “You could unleash demons of which ye know not.”
Peter Foster will discuss this article, the world of the Brexit negotiations and where we go from here, in the first of Prospect’s “Behind the headlines” events on 22nd October. Click to find out more