What has happened with the EU British negotiations? Has the UK tarnished itself by willingly tearing up a legal agreement with the European Union? John Gloster-Smith attempts to look deeper into the issue.
The seemingly eternal Brexit saga has reached its climax in final negotiations for a trade agreement between Britain and the EU with both sides deadlocked over fundamentals. The Johnson government has tried to apply pressure by publishing a bill on the new UK internal market that ignores part of the Withdrawal Agreement (WA) it signed last year, and as such abrogates an international treaty and thus breaks international law as well as threatens the Northern Ireland peace process. This has infuriated the EU and thrown the whole situation into crisis.
Trade negotiations are often very complex and technical, especially with a union of 27 states, and therefore for brevity’s sake this article will focus on the political dimensions in the UK. Usually trade agreements are actually very political and behind the detail about such things like rules of origin, rules on state aid, level playing fields and fishing quotas lie a lot of politics on both sides. This article will therefore focus on the political aspects and in particular explore why Britain seems to be making such heavy weather of reaching a deal and even apparently wrecking the chances of an agreement.
Why all the fuss?
Firstly, why the outrage over a bill to regulate the new UK internal market? This legislation is needed to replace the EU single market that the UK has now decided it wants to leave, in favour of a free trade deal. Irrespective of the breach of the WA signed last year, it is already set to override the devolved assemblies’ rights in this field and a long-term consequence of the crisis could be yet more strain on the UK Union and give further impetus to demands for independence in the three Celtic nations. It should be noted that both Northern Ireland and Scotland voted to remain in the EU and Brexit is being implemented despite this democratic deficit in “nation” terms on the basis that the 2016 referendum was a UK-wide vote. However, the real nub for many at present is the abrogation of an international treaty, the WA.
The UK Internal Market Bill includes clauses to cater for a situation where the two sides fail to agree and therefore replaces the agreed terms in the already signed WA relating to Northern Ireland trade with terms that the UK government decides, thus setting aside a crucial part of the WA. It was admitted by the Northern Ireland minister, Brandon Lewis, that this would be a breach of international law. This has produced a huge shock and outcry, both within the UK and in the EU and internationally. For a country that up to now has had a reputation for adherence to the rule of law and has played a major part in supporting this principle internationally, most recently this year in China’s suppression of pro-democracy protest in its former colony of Hong Kong, this is widely seen as a massive departure and a serious threat to a rules-based international system. There are many far more authoritarian regimes around the world watching this closely who would be only too eager to follow suit. Britain has been very successful since the allied victory in World War Two against three aggressive dictatorships in promoting this fundamental principle and its action, like Hitler’s in undermining the 1919 Treaty of Versailles before World War Two, could have far reaching consequences. It is therefore likely that the international order will resist, particularly if Biden wins the US Presidential election in November. What Britain is doing sets a very bad precedent internationally.
From the EU’s perspective, to override the WA and in particular the Northern Irish Protocol, puts it into a situation where it could take legal action against the UK in the European Court of Justice (ECJ), which under the WA has jurisdiction. It has given the UK until the end of September to withdraw the offending part of the bill and if it fails to oblige then the EU can take enforcement action in the ECJ, with the latter issuing fines, cancelling all or part of the WA, imposing punitive tariffs and engaging in a trade war in which the EU would hold all the advantages. Since Britain is already facing great economic difficulties as a result of the Covid pandemic, such a trade war could be terminal, as well as probably fatal for the UK Union.
Domestically, the UK government’s action has galvanised opposition within the governing Conservative (or Tory) Party. Three former Tory Party leaders have come out against the bill and about 30 MPs in the House of Commons have indicated they might rebel when the bill in first debated on Monday, which so far is not enough. Johnson has an 80-seat majority and over about 45 MPs will be needed to defeat the government. However, the government might find that parts of its bill does get amended. Moreover, the House of Lords, the UK Parliament’s nominated revising chamber with limited powers and where the government does not have a majority at present, are likely to reject the bill, leading to a significant delay. Time is not on Johnson’s side since the Transition period ends on 31 December and thus with it any possible EU deal.
Why is Johnson doing this?
So why is Johnson doing this if he wants a deal? Surely alienating your negotiation partner isn’t going to build the necessary trust. In fact, the loss of trust in the UK over this affair is internationally speaking perhaps the most damaging part of it for the UK. Johnson is in danger of making Britain into a rogue state. Moreover, is Johnson playing “hard to get” in extremis and will compromise in end, like he did last year with the WA and the Northern Ireland Protocol that he signed then but now affects to believe is problematic? Or does he want to force a No Deal Brexit and tear up the WA because he couldn’t get the free-trade-on-UK-terms “cake-and-eat-it” deal he believes exceptionalist Britain is due. Why do such a crazy thing?
This question takes us to the heart of the Johnson Brexiter project, to the ideology of Brexitism and the nature of the populist regime now in power. To outsiders bewildered or bored by the complexities of the Brexit crisis, it is important to grasp that what has been occurring in Britain is a slow-motion coup.
Although the 2016 referendum Leave campaign made no reference to a complete No Deal Brexit, such has been the evolution of the internal dynamics of the Tory Party that when Johnson replaced May in July 2019 he appointed as ministers mainly people who had supported or been involved in the Vote Leave campaign. Moreover, the balance of power within the Party had shifted in favour of the right wing, to people like those in the faction called the European Research Group, who, as well as leaving the EU, opposed membership of the single market, and wanted to leave the jurisdiction of the ECJ and have the freedom to negotiate independent trade deals across the world. In brief this was a “hard Brexit”. Many disliked the WA but saw it as a necessary compromise in order to leave the EU on 31 December. They now see the opportunity to escape what they regard as the remaining clutches of the EU contained in the WA. If the price is no deal, then that to them is a price worth paying, enormous though that might seem to an outsider. One has to understand that these are people who have been campaigning against EU membership ever since the Maastricht Treaty in 1993 and the formation of the EU itself. The Tory Party were divided over the issue since then and the Eurosceptics, as they were called before 2016, frequently made problems for the leadership over the issue. The unexpected victory in 2016 gave them their chance. Brexiters are now in the majority in the Parliamentary party.
One could say that Johnson is acting against the WA to retain the support of the right wing. This has been a classic pattern for Tory leaders since Cameron became leader in 2005, to give something in policy terms to his right, who then asked for more. One could suggest this since Johnson has been struggling as a Prime Minister in the face of the challenges of the pandemic. He lost a lot of internal support over his handling of the Cummings Affair when his “dark arts” chief advisor at No 10 evaded the lockdown in April and was supported in the teeth of widespread criticism. Since then there have been a whole series of mishaps and U-turns in the management of the pandemic and questions have been asked by backbench MPs about Johnson’s suitability to remain in office. To switch attention to a “foreign policy” matter is a classic diversionary tactic, especially as it takes Johnson on to his preferred policy area, fighting for Brexit. Many criticise Johnson as being a campaign not a government, and yet he can now turn this to advantage and attempt to pull the opposition out of their bunker to which they retreated after their 2019 defeat, harangue them as “Remoaners”, and stiffen his electoral base in the ongoing culture war.
While this is a tempting explanation, it is not without hazard if Johnson ultimately intends to compromise and climb down. His support would turn on him and, given the mishandling of the pandemic, it still could. Also one could ask why Johnson is making a stand on state aid for ailing business in this crisis which is contrary to free market Tory beliefs. However, there is more to the Johnson Brexiter regime than this. Under the direction of Dominic Cummings, a revolution of a kind has been taking place at Westminster and Whitehall, and it has a lot to do with the rule of law.
The primacy of politics
Under the influence of Cummings, Johnson has carried out a series of actions that collectively threaten to undermine the British Constitution as currently understood. For example, he attempted to prorogue Parliament to stop it debating the WA but was overruled by the Supreme Court in a landmark decision on 24 September 2019. He has since set up a legal panel to consider ways to limit this kind of judicial review. He has taken emergency powers to fight the pandemic, since which over 200 measures have been taken without Parliamentary consent. He led an election campaign that was billed as “The People versus Parliament” to “get Brexit done”, presenting Parliament as the threat to the “People’s Will” to bring about Brexit. He refused to publish an independent Parliamentary Intelligence and Security Committee report that showed Russian collusion with Brexiter politics and, once forced to publish it, has ignored its recommendations.
Populism has a strong anti-Establishment rhetoric, positioning themselves as leaders of “The People” against a perceived corrupt, self-serving political elite. Remember Trump and his promise to “drain the swamp” in Washington in the 2016 Presidential election campaign. Populists are disruptors, seeing themselves as seizing the citadels of power and destroying the centres of influence that frustrate the People’s Will. Thus Cummings has not only sought to curb Parliamentary influence but has launched attacks on the “Remainer” Civil Service, leading to a series of high-profile resignations of top civil servants. Just last week the Treasury Solicitor, a top government legal advisor, resigned in protest at the UK Internal Market Bill and the breach in international law. Cummings, aided by Gove at the Cabinet Office, has been centralising power in the Cabinet Office and No 10. Thus “Remainer” strongholds, as they see them, are being broken down. Moreover, the Johnson style, supported by his ministers is that when things go wrong, as with the pandemic, they blame the officials and refuse to take responsibility themselves and resign.
This refusal to take responsibility but blame others is relevant to the conflict with the EU. The latter have long suspected that Johnson intended to blame the EU for the breakdown in talks, even to wondering whether he was conducting them in good faith. They may well be right. The Johnson regime is an iconoclastic one, driven by a populist disrespect for institutions and even laws that stand in their way. Many describe Johnson’s government as chaotic, and that he lacks management skills. This is probably due to laziness, but it is not uncharacteristic of populist regimes in general. Like Johnson, Trump for example operates in a disorganised way and like Johnson has appointed “Yes” people to positions of power, who will do his bidding.
It is quite possible therefore that this regime intends to break the WA, or at least indulge in the rhetoric of EU-bashing whilst quietly compromising. A full no deal and a breach in international law, in the midst of the pandemic, might be a step too far. However, one should not underestimate the ideological drive of Brexitism, its populist iconoclasm, and its disrespect for institutional and even constitutional constraints. After all, it was borne in the anger over Maastricht and the formation of the EU itself.
Moreover, ideologically, many Brexiters are neoliberal free marketeers, and see breaking free of the EU as an important precursor to deregulation, free trade, and the stimulus given to business freed from the control of bureaucratic “Brussels”. A strong Brexiter ideologue, Liz Truss, is International Trade Secretary and has been travelling the world negotiating free trade agreements.
No wonder the EU believes Johnson has thrown down the gauntlet. He may have to retreat this time, but the dynamic of a frustrated English, and I stress English, nationalism is such that this unscrupulous tendency in politics will be back for more later. In holding this obsession, they are not dissimilar to populist movements elsewhere, and liberal democrats are being served notice that, if they truly want to save liberal democracy they have to come up with a more emotionally engaging and reform-minded set of solutions than the old, arguably tired-looking remedies that populists will say have failed “the People”. Far from isolating and weakening these people, the pandemic is so far encouraging a growth in far-right movements, with which right wing established parties are tempted to make common cause. The US Presidential campaign is today a case in point. Johnson may not be leading a competent government, and may not be competent himself, but he knows how to play the politics of the hard and far right. He is very unscrupulous and should not be underestimated.