Deal and no-deal

22 October 2020

As I signalled in my last, I’m looking for a deal. Boris seems to want it and no-one on either side of the Channel wants the odium of kyboshing it. This is not what I originally expected, nor really what I'd prefer. I find the Withdrawal Agreement, in particular the Northern Ireland Protocol, close to a Diktat, and we all know where that ends. Nonetheless, it is tricky to repudiate a treaty wholesale and there is no evidence that the UK wants to, notwithstanding the provocative clauses of the Internal Market Bill. Me, I’d find a spike at Traitor’s Gate for the heads of the UK’s negotiators from 2016 to 2019 - I still can’t understand why we didn’t bargain access to our market for goods for the status quo ante on services - but that’s now ancient history.

We’re now at what my pals in the negotiating game call the short strokes. Away from the conference room there’s been a flurry of stories about nothing much: a duff confcall between Gove, Johnson and industry grandees; an anxious letter from European carmakers to the EU; a touching account of distress in prospect for Flanders. At the negotiating table, it’s back to shadow-boxing: intensify talks, go into the tunnel, offer legal texts, move to mutual concessions. And we’re there: Barnier and Frost are about to work overtime to bring it in.

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Remainers and Leavers are not what they were. The Remain campaigning groups are dissolved. The epochal European Research Group has been replaced in the parliamentary van by the China Research Group and the Conservative Union Research Group. Kier Starmer has nothing to say on the subject. Brexit’s Tribune, Steve Baker, has turned to fighting lockdowns and goosing Cummings. Nonetheless, we’ll hear music from the band till the ship goes down.

Any deal will be imperfect. It’s not so much the current headline issues. Not the level playing field - it’s hard to see why this matters, as we spend half as much on state aid as our neighbours. Nor dispute resolution - a bargain must lie along the lines of Brussels accepting that the ECJ can’t be the final arbiter, while HMG tolerates it interpreting EU law. Nor fishing, where a deal on timetables and quotas is waiting to be done. Nor even that Remainers will say that any deal is worse than staying in and that the Government has achieved little, as such complaints will be lost in the ether.

It’s more that fair number of Leavers of my kidney are unreconciled to the Withdrawal Agreement and the Northern Ireland Protocol. I can’t say that this will loom with the public as though a Versailles-like Diktat. But no-one should imagine they can plot the course of Irish politics, so who knows how this piece of unfinished business will end up?

Although I see a deal in prospect, let’s briefly consider the alternative. If no deal, Remainers will seize upon friction (eg, at the ports) and point to the need for further negotiations with the EU. On the latter, they are on to something. In and of itself, this is as good an argument as I know for a deal, as getting the business out of the way.

By contrast, Leavers will be keener on repudiating the Withdrawal Agreement etc as invalidated by the lack of good-faith efforts by the EU. The applicable clause in the withdrawal agreement is Article 184, “Negotiations on the future relationship”, which reads:

  • The Union and the United Kingdom shall use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration of 17 October 2019 and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period.

Lawyers can argue this till the cows come home. Let’s say that it feels more like a fig-leaf than a cloak for repudiation.

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The greatest challenge to the outcome I’m reluctantly expecting comes from the States. Biden is looking good as the country's 46th president. He is unlikely to be that warm to the UK: closer to Ireland by dint of personal background and party sentiment; and closer to the EU itself - until Trump, promoted by the US on a bipartisan view of geopolitics. This won’t help a UK-US trade deal. A less combative American approach will also reduce the incentive for a new group of medium-sized trading nations, where the UK might have found a home, if not leadership. Then again, this outlook sows paradoxical seeds. We should expect the anticipation of two such no-deals to reinforce Whitehall and Parliamentary voices for the biggest no-deal of all, the failure of negotiations with Brussels, as maximising Britain’s flexibility. So we might yet be surprised.