Still Searching

The UK in a Changing Europe initiative, led by Professor Anand Menon of King’s College London, has produced a report describing some of the possible impacts of a “no deal” scenario. The authors adopt the term “chaotic Brexit” as a means to distinguish a failed negotiation, with no reciprocal agreement at the end of the talks, from the more familiar term “hard Brexit”, which broadly denotes a withdrawal agreement that would see the UK revert to trading with the EU27 (and, presumably, the rest of the world) on WTO-only terms.

The impact of failing to reach a deal with the EU would be, the report says, “widespread, damaging and pervasive”. What is notably absent, however, are any suggestions for how the UK government could mitigate or avoid such an outcome, and that, I would have thought, is where these experts could be providing real value. Not by telling us what must be done, but by narrowing what Bill Seddon calls the “plausibility scope”, in order that we might understand our options more clearly.

Just how damaging a “no deal” scenario would be has been explored on from a variety of angles since the “leave” vote. To my way of thinking, much of this is raking over old ground, the situation now is rather more urgent. What would be useful are possible solutions.

Then, as I read through the section about the impact of a “no deal” scenario on the agricultural industry, a thought which I have been struggling to concretise came together. Most academics are not practitioners. As such, they are (necessarily) reactive, rather than pro-active. They’re looking at what others (politicians and policy-makers in the civil service) are doing and trying to understand it, much like the rest of us.

Are they also expecting a steer from government, rather than thinking that maybe the impetus ought to be the other way around?

This short section made that idea loom even larger:

This means that some kind of transitional arrangements will almost certainly be necessary. These might allow the maintenance of trade with the EU on something like current terms, while the details and practicalities of any long term deal are thrashed out. But here again nothing will be simple. There is little prospect that the EU27 will allow this unless we agree to the continuation of free movement of people and the jurisdiction of the European Court of Justice during any transitional period.

The notion that two-years is too short a time to agree a new relationship with the EU will be familiar to anybody who has visited this blog over the past year. The part that really stood out, however, was the assertion that there is little prospect of the remaining EU Member States agreeing to any transitional arrangements that do not involve free movement of people and the jurisdiction of the ECJ.

That appears to ignore the existence of EFTA and the two-pillar EEA agreement, which uses the EFTA Court as an arbitration and dispute resolution mechanism. Is this an oversight on the part of the authors or are they unaware of the fact that there are states which participate in the Single Market without also being in the EU?

Given that the ECJ does not claim jurisdiction over any territory outside of the EU Member States, it strikes most people as untenable that this avowedly political court could retain such powers in the UK even after EU withdrawal. The EFTA Court, by contrast, is a viable alternative to the ECJ, the kind of pragmatic compromise that could pave the way to a deal both sides can accept.

This is an important piece of information, which should be more widely communicated and understood. Yet this report’s choice of words could be used to reaffirm the all-too-familiar narrative that would have us believe continuity ECJ is the UK’s only option over the short- to medium-term. It is all very well to present us with problems, but I would expect subject matter experts to be willing and able to offer creative solutions too.

Neither, given the sensitivity of the subject matter, do I think calls for greater attention to detail are unwarranted. Which brings me to my final piece of constructive criticism.

The leading academics who produced this report purport to provide readers with unbiased commentary and objective information. With that in mind, why then does their report include rejoinders such as this:

As for UK nationals living, working and providing services in the EU, so long as the UK remains a member they will continue to enjoy EU rights. But for how long will the EU tolerate UK nationals enjoying the rights of EU law in their countries when the UK has made it so clear that it wishes to turn its back on the EU?

Why is leaving the EU here characterised as Britain turning its back on the EU? Why not say, “leaving the EU” or “withdrawing from the EU”? I doubt whether such a turn of phrase would find its way into any of the author’s academic papers, so why adopt this emotive tone when writing for a general audience? By the same token, in what sense does the EU following its own rules require tolerating UK nationals? The EU is a rules-based organisation, tolerance does not enter into it.

Language matters and if you’re going to affect the position of one who is objective, it matters that you adopt a neutral and descriptive lexicon, which does not prejudice how readers interpret your arguments or assertions.

It’s odd to feel like the professor marking a capable student’s coursework, when the report is the work of experts and I am just an interested observer, but that is how it is. As was sometimes written on some of my earlier efforts, “You’ve made a start, where is the rest?”.

Expert Opinion

David Allen Green writes about the EU for the Financial Times. By his own admission, “[he] had hardly written about EU things” until just over a year ago. With that depth of experience behind him, Green today offers us his take on, “How Brexit should be done”.

The piece starts with Green telling us that he hopes to allay accusations that his criticisms of UK government policy are “unhelpful” by providing readers with a “constructive blogpost”, setting out how Brexit should and could be done, “if it is to be done at all”.

Okay, let’s pause the tape.

The referendum was won by the “leave” side, Parliament voted to grant the UK government the power to invoke Article 50, and that treaty provision has now been invoked. Are we not a little way past rejoinders inviting us to reflect upon whether EU withdrawal should happen at all?

It speaks to Green’s lack of self-awareness that he should whine about people accusing him of harbouring an anti-Brexit bias while still leaving open the idea that the UK could yet choose to remain in the EU.

Right, start the tape again.

Next, Green asserts that “Article 50 is not the only means by which a member state can leave the EU”. That sound you can hear is probably me hitting my head against a brick wall.

The last time I was forced to endure this nonsense was when Dominic Cummings, of Vote Leave fame, was telling us the very same, warning that Article 50 was a “trap”. A disproportionate amount of campaign time was spent rebutting people who were keen to exaggerate the horrors of this straightforward exit mechanism. Article 50 is about a negotiated exit. That is practically all there is to it.

Why this should be raised as a point of contention is beyond me. Moreover, given that Green trailed this piece as offering a “constructive” way forward, it is hardly practical to say, “I wouldn’t start from here”. Indeed, for a writer for the portentous Financial Times to be dragging us back to a time prior to the firing of the starting gun, when a thousand paranoids were saying that even the Article 50 process was a trap, is just sad.

However, I have to praise Green for pointing out that David Cameron “irresponsibly prevented the civil service from preparing for a Leave vote”. Since the referendum, people have questioned me as to whether that really happened, when the fact of the matter is Cameron’s behaviour is well documented. Not only did the government not make plans, David Cameron acted to prevent any such plans from being made. Still others have attempted to argue that the absence of planning was not significant. Often these are the same people who criticise the near-incoherent approach of the May government.

The rest of the article is (I’m writing this as I read it—can you tell?) not nearly so interesting. The final two-thirds of the piece essentially assert that the UK government should ditch the childish rhetoric and approach the negotiations in a manner that keeps its options open, while retaining clarity regarding the essential objective of delivering the referendum mandate—withdrawal from the European Union.

That is so obvious one wonders at why it should even need to be asserted. Yet, Green is praised for providing such bland commentary.

If a Financial Times journalist imagines that this doleful stuff describes how Brexit should be done, it is little wonder that the legacy debate is so enfeebled. There seems to be few who are willing to recognise just what a vast project EU withdrawal really is because that would mean coming face to face with the extent of the deception that was done, when politicians and journalists consented in telling us that EU membership was mainly about trade.

Defining Terms

One of the odder characteristics of what is called the Brexit debate is the tendency of people to adopt alternative definitions for familiar terms.

The sui generis example must surely be Mrs May’s circular, “Brexit means Brexit”, which, taken seriously, can only mean, “Brexit means what I tell you it means”.

Picking up that particular baton and running with it, several politicians and journalists have taken to saying that, “hard Brexit” means Brexit but “soft Brexit” means Remain. When is a Brexit not a Brexit? There is a joke in there somewhere.

So, instead of discussing the various important issues relating to Britain’s future relationship with the EU and EU Member States (not to mention the rest of the world), politicians, journalists and academics seem to be more interested in divining the Platonic ideal of the one true Brexit.

That is precisely what the Flexcit plan attempts to avoid. In order to decouple UK administration from EU institutions, policy will need to be flexible and open. In the short-term that means prioritising leaving the EU.

It seems remarkable that the above should need to be said, yet there is a strange alliance of former Remainers and a small fringe on the Tory Right, who, although they would deny that they have any shared aim, assert that remaining in the EU after the Article 50 talks have concluded would be a viable approach.

In the case of the Tory Right, I would refer you to Mrs May’s Lancaster House speech, and the idea of an indeterminate “implementation phase” following the current rounds of negotiations. How that would be achieved or what that would mean in practical terms is not something I have heard anybody address. For the former Remainers, the idea seems to be to remain through courting catastrophe.

If we could adopt and agree upon a clear definition of what Brexit means, much of this nonsense could be avoided.

In the blogosphere, it turns out that this is a solved problem. In January 2016, Bill Seddon coined what I have since regarded as the canonical definition of Brexit and, in my opinion, the basis by which the UK-EU negotiations should be judged:

Brexit = Withdrawal from EU Treaties, Institutions and Representation: “Not A Penny More And Not A Penny Less.”

Viewed in this particular context, the confusion that the legacy press tends to foster, simply falls away.