Civil servants are fighting back against unrealistic ministersby Ian Dunt / August 23, 2017 / Leave a comment
European Court Of Justice, Luxembourg. Photo: Horst Galuschka/DPA/PA Images Brexit is as vast and intractable a problem as Britain has faced in the modern era, but ultimately it is just a battle in a larger war. The war is a very familiar one to anyone who knows the politics and psychology of the British: are we going to be like Europe or America? Once you get past the talk of trade, regulations, arbitration and the rest, you arrive at a very simple choice: will we take up EU or US standards? We won’t take up independent ones. We’re too small. Ultimately, we’ll do what either the US or Europe wants. If our final deal with the EU—in or out of the single market—involves accepting their standards, there is a very substantial limit to the kind of deal we can do with the US. The EU has very high standards on chemical safety and data protection, for instance. If we agree to abide by them, we can trade more easily with the continent. But that would restrict the ease with which US firms can access our market and make us less attractive to Washington. If, on the other hand, we do a deal with the US—say by allowing chlorinated chicken and hormone-injected beef into our market—the Europeans will throw up barriers to stop them getting in. It’s like a romantic entanglement. You can sleep with either of them, but if you’re going to move in together you really need to decide which one you prefer. Today’s position paper on dispute resolution for the Brexit deal gets to the heart of this question. Any deal which is tolerable to the EU means accepting the rulings of the European Court of Justice (ECJ). This body defines the standards you need to hit in order to be able to trade with Europe in the “frictionless” way No 10 wants. Theresa May’s promise to remove the UK completely from the jurisdiction of the ECJ was a major obstacle to securing this deal. This pledge was the first glimpse of the tactical failures which would later come to define her. Today, she is insisting that red line remains intact but in reality, it does not. It’s been downgraded to “direct jurisdiction.” The precise meaning of these small semantic differences provides the battleground for the future direction of the country. According to the position paper, this “indirect” jurisdiction can include models such as the European Free Trade Association (Efta) court, which assesses whether Norway, Iceland and Liechtenstein, who are outside the EU but inside the single market, are conforming to relevant EU legislation. Crucially, it has to “pay due account” of ECJ rulings. In other words: the British government appears to believe that it can abide by its ECJ red line while signing up to the entirety of European standards. This solution would allow the UK to remain in the single market, or to replicate as much of the single market as possible outside of it. Either way, it is a vision of a country which is European in its standards—not American. Nevertheless, this is not game, set and match. While these papers are coming out, the people around trade secretary Liam Fox are scheming. Last week, they made sure they could try and sign trade deals while the UK is in Brexit’s transition phase. Sources say the plan is to agree enough substance with the US that a proper deal with the EU becomes impossible. It is essentially a guerilla warfare strategy which technically accepts the EU limitations while subverting them from within. All this also suggests that there is a coherent government position, which is not clear at all. Most Brexiters on the backbenches and around the Cabinet table really don’t understand how these legal processes work, so they struggle to articulate if they support what is being proposed. When they recognise the ramifications, they may start rocking the boat. But nevertheless, you can see clear signs of civil servants forcing realistic solutions onto ministers who have become half-crazed by Brexit promises. This particular battle was won by those trying to maintain a European Britain—whether it’s inside the single market or not.