Professor Chris Grey’s Brexit analysis on the reputational damage of treating the Political Declaration and, worse, the Withdrawal Agreement as irrelevant; on the Terminator-like ERG; and how this matters for the UK’s global relationships.
First published in June 2020.
The irritation in Michel Barnier’s press statement at the end of last week’s negotiations was palpable. “Things cannot go on like this”, he despairingly warned, and his particular concern was the UK “backtracking on the Political Declaration”. It was a strong indication that any remaining trust in the negotiations has all but disappeared, and that hasn’t just happened in the last few weeks. Rather, it has been in the making for years.
If not earlier, it perhaps began when the Brexiters, including Boris Johnson, denied the legitimacy of any financial settlement – something I will come back to. It became entrenched when David Davis and Theresa May immediately disowned the backstop they had agreed to end the phase 1 of the Article 50 negotiations in December 2017. Many other examples could be given.
Distrust is now endemic
Under Johnson’s premiership that lack of trust has become endemic. That’s partly because EU leaders recall the long years of lies he told whilst a Telegraph columnist, and have disdain for his role in the Referendum. It’s not difficult to imagine that he is one of those whom Donald Tusk was referring to as warranting a “special place in hell” for having advocated Brexit with no plan. But it is more because of the way in which, since coming to power, Johnson has seemed to resile from what he agreed, especially as regards Northern Ireland.
In a piece last month, following the Frost letter, I lamented that the bitter truth is that the UK can no longer be trusted. Yet the Brexit ‘patriots’ feel no shame and, worse, no realism. Their response to Barnier’s press statement was to crow that he was ‘rattled’ by Britain’s ‘tough stance’ – yet apparently not so cowed as to stop him being ‘rude’ and ‘insulting’! The more ‘cerebral’ and, indeed, the official response was to point out, echoing Davis’ comments about the phase 1 agreement, that the Political Declaration (PD) is not legally binding.
The Political Declaration isn’t irrelevant
That is perfectly true, but it is a very long and dangerous jump from that to treating it as totally irrelevant. It was signed by Boris Johnson as a commitment of ‘good faith’ to the agreed framework for the future. As Simon Usherwood, Professor of Politics at Surrey University, points out reneging on it has damaging reputational consequences. It’s not just dishonest but, perhaps worse, naïve, for Johnson to treat as if it were one of his throwaway newspaper columns. You simply can’t conduct international relations that way and expect it just to be laughed off, or forgiven and forgotten, by other countries.
It’s clearly the case that, as a framework, it does not address the detailed provisions of the future agreement. Equally clearly, within negotiation there will legitimately be ‘maximalist’ and ‘minimalist’ interpretations of how to operationalize the framework. But that is not at all the same as simply treating it as totally irrelevant (as, indeed, Brexiters used to realise).
For example, on one of the key areas of contention referred to by Barnier, Level Playing Field (LPF) provisions, paragraph 77 of the PD is very explicit about how economic interdependence and geographical proximity mean there must be robust commitments on state aid, competition law and so on. So, yes, there is legitimate negotiation space around what ‘robust’ means in practical terms, but it is simply dishonest for Brexiters, including Johnson, to pretend that these issues have been newly introduced by the EU*. If Johnson objected, the time to do so was before signing the document off.
But more ominous than the ongoing disavowal of the PD was a report in the Brexiters’ house journal, The Express, that the government regards the Withdrawal Agreement (WA) as having “unfair defects” that must be remedied. That marks a significant escalation because it is not based on any claim that it is legally non-binding: there is no dispute that the WA was signed as a legally binding international treaty. Reneging on it would go beyond reputational damage.
The justification for this stance is telling. On the one hand, the report refers to an unnamed ‘government source’ (does that mean Dominic Cummings?) as linking the ‘defects’ to what was agreed by Theresa May and Olly Robbins, and the constraints of the May parliament. This reflects something which has been swirling around Brexiter circles for months now – a sense that, despite Johnson signing it, it was in some way not legitimate because of those antecedents including what they regard as a ‘remainer’ parliament. It is dangerous nonsense for whilst, as they are wont to say, no parliament can bind its successor, that does not mean that international treaties negotiated during one parliament become irrelevant afterwards. International relations would scarcely be possible if that were so. And, in any case, it’s an absurdity as Johnson didn’t sign the WA and PD until January 2020 - after the election. He owns them.
This relates to the other aspect of the supposed justification for re-opening the WA, namely that the government did not have time to deal with all the “defects” of May’s deal, just to replace the Northern Ireland backstop. But not only is the government now resiling from the frontstop that replaced it, it was the government that insisted – against much warning – that the whole thing had to be rushed through with scarcely any scrutiny to meet the deadline of 31 January. Moreover, we now know – courtesy of Steve Baker – that the ERG hardliners were persuaded by Dominic Cummings to support the WA, without needing to read it, on the basis that Michael Gove said it could be changed later.
As with Brexit in general, the easiest way to understand the outrageousness of this is to think about it the other way round, and imagine how the UK, and Brexiters especially, would react if the EU said that with Juncker, Tusk et al now gone, the EU no longer felt bound by the WA and PD. Or if the states and MEPs who had voted to ratify the WA now said that they had done so without bothering to read it as they had been told it could all be re-written afterwards. The shrieks of anger would be deafening, and the opprobrium heaped on the EU vitriolic.
The deal formerly known as ‘oven-ready’
Of course it’s not just the trust of the EU which is being betrayed by this deepening farrago of lies. It’s also the British electorate. For don’t forget that this near-discarded PD and this ‘defective’ WA used to go under a very different name: together, they were the “oven-ready deal” that Johnson promised would “get Brexit done” during the 2019 General Election campaign. This was “the great new deal”, not in any way to be confused with May’s despised efforts. In vain did I and countless others warn that it would just be the beginning of a new process of negotiation. Still, at least it might have been assumed that those negotiations would go forward on the basis of the WA and PD, not backwards to try to re-write them.
Such an assumption was always going to be naïve, though. And this goes to the heart of why the EU is right to distrust Johnson. Again and again as Prime Minister (never mind about beforehand) he has shown not just dishonesty but a palpable scorn for law and the normal political process. The doyen of law and policy commentators, David Allen Green, who invariably uses words with great precision, last year wrote of Johnson “going rogue” over the question of whether he would obey the law requiring him to seek an extension to the Article 50 period. It was, Green said, “unprecedented” for a Prime Minister even to be contemplating not doing so. This was also in the context of the illegal prorogation of parliament and these and other examples provide ample evidence of the subfusc authoritarianism that Johnson’s jokey persona increasingly fails to cloak. No doubt it is echoed, amplified, and incited by Cummings’ infamous contempt for ‘playing by the rules’.
This makes Johnson a difficult character for the EU to deal with, but that character is only one manifestation of the problem. As noted above, the UK government’s behaviour since Brexit has been repeatedly untrustworthy, even under the leadership of May, whose character was very different. The underlying issue is neither of them, but the now near comprehensive ‘ERG-ification’ of the Tory Party and, hence, government. Perhaps because the old familiar trappings of the political spectacle persist, it’s easy to miss how hollowed-out Britain’s political institutions have become during these Brexit years.
Government by cult
Indeed, the EU’s bewilderment – like that of many commentators including, at times, myself – stems from a failure to appreciate quite how far and deep that process has gone. The ERG is rather like the Terminator which “can’t be bargained with, it can’t be reasoned with, it doesn’t feel pity or remorse or fear and it absolutely will not stop ever …” So the hope that, at some point, rationality will assert itself – for example over the damage of no deal or extending the transition period – keeps being dashed. Similarly, the idea that some ‘compromise’ from the EU would unlock things, even if such compromise was possible, is flawed. Really, one could imagine that if the EU conceded on every single UK demand the Brexit Ultras would still denounce it as insultingly inadequate.
We’ve arrived here step by step because every demand made by the Ultras has been conceded – the Referendum, then the row about the question to be asked, then the franchise. And each demand met has led to a still harder one, from ‘we just want to be like Norway’ right up to the point that we are just about at which is that any deal and any form of relationship with the EU is intolerable. That’s totally unrealistic, of course, since the EU will still be there (although the hardcore of the Ultras always believes it will collapse) but realism isn’t part of the story here. Indeed, realistically, it’s far more likely that Brexit will lead to the break up of the United Kingdom.
That an entire government should be in hock to an effectively nihilistic cult is partly to do with the internal history of the modern Conservative Party, the ruthlessness of the ERG, and their parliamentary numbers which are enough to pose a threat even when the government has a large majority. But it requires that those who are far from membership of the cult – and, still, there are plenty of Tory MPs in that category – for one reason or another go along with it. At the present moment, that means buying into the narrative that all that is happening is a tough negotiating stance which will yield an eleventh hour ‘blink’ from the EU and, for this reason, no transition extension should be sought.
Beyond that, it requires a much larger number of people within the electorate to accept the situation – either being themselves cultists, or buying in to the strategy as described or, and here the numbers are probably very large, thinking that it is all a lot of noise and that in the end ‘they’ (whoever that might be) will ‘sort things out’. There is much danger in that. It rests upon the complacent assumption that ‘things are bound to go on much as always’. Yet few realise the complex web of systems and regulations that create what they take for granted, and they may very well not forgive the ‘disruptors’ for ripping those systems up.
The idea floating around that any damage from there being no trade deal will be ascribed to the wider coronavirus crisis is unlikely to be correct when specific consequences – food shortages being the most obvious, but Bloomberg have compiled an extensive and alarming list – kick in overnight, making causation very obvious. If anything, coming on top of all the pain of coronavirus, public tolerance is likely to be less forthcoming, and much of the disruption will occur even with a trade deal.
So far, with the exception of the immediate sharp fall in sterling after the Referendum, Brexiters have been able to provide alibis for the damaging effects of Brexit (what one might call the ‘diesel decoy’). I’m not sure that will be so as people begin to experience what Tom Hayes calls ‘the Brexit of small things’, the things that affect their daily lives. On the other hand, that currency collapse of 2016, which would in any other context have led to a political crisis, was almost shrugged off – so who knows?
The road to pariahdom
But even if the government ride out the domestic economic and political consequences of no deal, the damage to Britain’s international reputation will be substantial. That will matter in relation to the EU and also in relation to other countries, who will see Britain as untrustworthy and irrational but also as desperate to do trade deals on any terms it is given.
For example, it’s already the case that Japan regards Brexit as a betrayal of the trust upon which basis its companies invested so heavily in the UK, and already the case that it is set to make tough demands in trade talks, which have just begun. Their outcome, says Michito Tsuruoka of Keio University writing in the Japan Times, is crucially bound up with the progress and outcome of the UK-EU talks. Indeed, he says, “no country wants to conclude a definitive trade deal with the UK without knowing the final shape of the EU-UK partnership”.
More generally, writing about the ‘original’ no deal scenario, Dr Nicholas Westcott of SOAS argued starkly that it would be “a heavy international defeat for Britain … we would have proven unable to negotiate – with our nearest friends – a deal that protected our economic interests. And the world will see this. They – the US, China, India, Russia, the Gulf States, African and Latin American countries, Spain, Mauritius, Argentina - all will say to themselves that Britain is now weak, it needs our support, and we can ask for whatever we want.” In short, no deal with the EU has a much wider import: it, or any other outcome of the negotiations, will directly impact upon the UK’s global standing and upon global relationships as well as those with our nearest neighbours.
And the thing about no deal is that that won’t be an end to the matter. That’s not simply because – as Tom Hayes, again, points out and as I did , in a different way, last week – all the unresolved issues will still be in need of resolution. It’s also because of the implications of the analysis of the ERG, above. For if it is correct that whatever they get they always want more, then what ‘more’ would they ask for having achieved the no trade deal scenario that many of them advocate?
The answer to that is already clear, even before it has happened, in what is already being said about the defects in the WA. That claim will intensify, because the Ultras have never accepted the idea of a financial settlement being made in the absence of a trade deal, and have always argued that any such settlement should be contingent upon a trade deal. Indeed Johnson, during his leadership campaign, threatened just that, whether in order to pander them or from conviction hardly matters.
So if there is no trade deal come next January they will unquestionably try to force the government to break the WA by reneging on the financial settlement and, very likely, as the signs are already there, the Northern Ireland Protocol, with all that will mean for relations with both Ireland and the US, though probably not, I think and hope, the Citizens’ Rights agreement. We will then be well beyond the current damage to trust and reputation, and headed down the road to pariahdom. We’re not quite on that road yet, but we’ve had glimpses recently of the signposts to it and if, as seems increasingly likely, there is no deal it’s the one the Ultras will be urging us down.
If so, it’s worth recalling that they haven’t, so far, failed to get their own way.🔷
*Actually, on social media at least, it is more common to see Brexiters claim that the EU has reneged not so much on the PD but on the Barnier staircase. On this account, that staircase promised a Canada deal, denoted by the Canadian flag. However, apart from the ludicrousness of regarding a signed agreement as non-binding but a PowerPoint slide as a promise, and as a promise of a deal on the same terms as Canada (when more stringent LPF conditions had been set in more formal documents), it is a misreading of that slide. What actually appears are the Canadian and South Korean flags – an indication of the general category of such a deal (FTA) and also of the fact that within that category there are different variants: not all FTAs are the same.
Check their Voting Record:
🗳️ David Davis
🗳️ Theresa May
🗳️ Steve Baker
🗳️ Michael Gove