I have been wary of writing on Brexit. The vast majority of the visitors to this site are clearly informed – and informedly clear – with respect to their opinions on the matter. However, with Mike’s indulgence, I would like to pose some questions for discussion.
The weakness of the British position now has little to do with the Parliamentary arithmetic. Indeed, as Alastair Meeks presciently wrote in July 2017, there can actually be negotiating strength in what he termed “parity of incoherence”. But…
There’s always a catch. On this occasion, it’s obvious. By narrowing the eye of the needle that the negotiators need to thread, the risk that they will fail is increased.
Instead, our weakness comes partly from the asymmetric size of the two negotiating parties, but more fundamentally from the three key concessions we have already made in the process of Leaving. Each concession was driven by a perceived political need to show that the process was progressing. Was this true in each case? To take them in the reverse chronology, as each flows from the previous one:
3. Agreeing the backstop last December
It’s worth reading both key paragraphs of the Joint Report, since paragraph 50 – inserted at the request of the DUP – seems to preclude the EU’s preferred Irish Sea customs border just as clearly as paragraph 49 precludes a hard border on land.
49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the allisland economy and the protection of the 1998 Agreement.
50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.
So – why did we agree to this at the time? The original text allowed the UK Government to effectively park Northern Ireland as an issue and move on to discussing future trading arrangements. Understandably the DUP objected, since one of their main objectives in supporting Brexit was to make Northern Ireland more British and more distinct from the Republic. Paragraph 49 implied the opposite.
The pressure to sign something was clear: there was a need to show progress in the negotiations to reassure businesses and citizens (the agreement actually mostly deals with citizens’ rights). There was also a political motivation to put to bed the drama and embarrassment of the DUP’s veto four days earlier.
But fundamentally the logical and legal contortions involved in declaring that there should be no border – on the border! – mean that this issue would have rolled over whatever we did, so I don’t see that withholding this concession – even though it has been used as a very effective wedge by the EU – would really have made much difference. We need to go back a further six months.
2. The climbdown on sequencing
It’s frankly ludicrous that we are debating the above without knowing the intended nature of the future trading arrangements. To quote David Davis, as he promised the “row of the summer”:
“How on earth do you resolve the issue of the border with Northern Ireland and the Republic of Ireland unless you know what our general borders policy is, what the customs agreement is, what our trade agreement is?” he told ITV’s Robert Peston. “It’s wholly illogical.” (FT, May 14 2017)
Well, quite. The Northern Irish problems largely disappear if a comprehensive free-trade arrangement can be agreed, as most people still eventually expect.
So – why did we agree to this at the time? The Government climbed down on the first day of the talks (June 19). One should note that Davis’s resignation letter makes clear that he disagreed with the decision.
I think this one is largely political and relates to the then very weak position of the Prime Minister: it was only 11 days after the election and the Conservative-DUP agreement had not yet been signed. Heading straight into an impasse would have suggested the Government was unable to deliver on its key agenda item – indeed the given reason for calling the election in the first place.
But of the three concessions, this is the one where I think we would have done better to stand firmer, and where we would have stood a chance of getting a better negotiating position. Yet Michel Barnier and the EU could simply have waited us out, because we had already entered into a time-limited process three months earlier.
1. Triggering Article 50
This is the big one. We should at least be grateful that David Cameron didn’t trigger it immediately, as Jeremy Corbyn had urged. The two-year timeline of Article 50 creates its own “backstop” i.e. an exit with No Deal. That is a lose-lose proposition, though the losses are heavier on our side which makes it difficult for us credibly to commit to it in negotiations.
Article 50 was written by the EU to favour the EU, and that is exactly how it has worked. It arguably creates a significant imbalance in the parties’ rights and obligations, contrary to the requirements of good faith. In another context, that would be seen as an unfair contract term. Good luck asking the ECJ to rule on that!
So – why did we agree to this at the time? Would it have been possible to seek to leave via treaty, or at the very least to get some commitments before triggering? The EU were very clear that there would be “no negotiation before notification”. If they had been determined to stick to this line, in private as well as public, we could perhaps have made a nuisance of ourselves with respect to budgets and anything that required unanimity. This would have been the Maggie-at-Fontainebleau approach and it might have worked, though it would also have risked undermining the trust required to later negotiate.
Regardless, was refusing to trigger Article 50 really viable, especially for a Prime Minister who had voted Remain? Whatever the negotiating merits of seeking an alternative approach, only by triggering it could she ensure we eventually left. Leavers would, not unreasonably, have feared that not triggering it was instead a precursor to a revised deal which kept us in the European Union.
What do you think?
Were any of these concessions avoidable? Or was the structural difficulty of leaving such that anyone seeking to do so would have to give a lot of ground?
Really – and perhaps this should have been the “fourth concession” – you have to go back to the signing of the Treaty of Lisbon in the first place, though as far as I can see Article 50 was not discussed much at the time. It would certainly have been a good idea for us to have had a referendum on that.
Aaron works in the betting industry and is a long-standing contributor to politicalbetting.com, posting under the username Tissue_Price. He stood for the Conservatives in Don Valley at the General Election last year.