22 September 2020
I suspended this blog over the (first leg of the) Covid crisis, but I feel the call of my keyboard as we approach the negotiation deadlines. To charge straight in, the trade deal with Japan tells us almost all we need to know about the flutter in the dovecotes over the Internal Market Bill a couple of weeks ago.
To go back to basics, during the Brexit negotiations, the EU faced an existential problem as to the border between Eire and Northern Ireland. If the border remained open, it threatened Brussels with a smugglers’ paradise. But closing it violated various all-Ireland agreements, antedating the parties’ accession to the EU. Barnier’s gambit was to argue that the threat of terrorism obliged special measures, draping this in the Good Friday Agreement.
Not everyone accepted this (notably including David Trimble), but somehow or other the UK was bamboozled or bulldozed into accepting first the backstop (May), and - after this proved indigestible to the Commons - the clauses in the Withdrawal Agreement which created regulatory divisions between Northern Ireland and Great Britain (Boris).
By contrast, Brexiteers saw the whole malarkey as a bad-faith manoeuvre, creating a stalking horse for indefinite interventions in British affairs by the EU and the ECJ. They insisted that the Withdrawal Agreement Act include Clause 38, stating that nothing therein derogated from the sovereignty of the British Parliament.
Now we come to the Internal Market Bill, whose controversial clauses give UK ministers powers to set aside regulatory divisions between Northern Ireland and Great Britain. I’m not sure this is as modest as Brandon Lewis’s unfortunate “specific and limited” but regardless, the Government has draped itself in sovereignty and its own construction of the Good Friday Agreement.
You will recall the circus which followed. The Government’s top legal official resigned (though conveniently taking his salary till next April), as did the Chief Law Minister for Scotland. The old lags - Gauke, Hague, May, Major - cried foul. More notably, so did Howard and Lamont - both Leavers. There’s something in their complaints: it’s undoubtedly a bad look for Boris to rat on an agreement he signed less than a year ago. Then again, maybe he always signed up to the offending clauses on a view that they set a trap for springing at this point. More likely, he felt he had no choice and has been fuming ever since.
Even so, ostensibly principled objections may be seen as lawyer’s quibbles. It’s a classic conflict of laws, where almost anything is arguable by a good brief, with no forum for definitive adjudication. Thus, Lord Falconer, the Shadow Attorney General, has said that there’s nothing the EU can do. That other famous lawyer, Kier Starmer, has made it clear that he no longer has a dog in this fight.
Reputational risk might be a more serious worry - after all, we’ve got trade agreements to negotiate. On the other hand, if HMG wants further to raise the temperature, it can point to Brussels’ own breaches of the Withdrawal Agreement - it has fifty years of form in playing fast and loose in such matters. This show can run and run. And in the real world, few trading partners will weep salt tears over Brussels - a notorious bully in negotiations - getting a comeuppance. We have seen how much it bothered the Japanese.
For all that public fury from the EU and Ireland was to be expected, the forthright objections from US Democrats hit home. Raab got something of a flea in his ear when he flew in for his 48-hour charm offensive. Is this response less than it seems, originating from apologists for terrorists and politicians on the ask for the Irish vote? It’s hard to be sure. Does it augur poor relations with an incoming Democratic President and Senate? This is an easier call, as we should bear in mind that until Trump, supporting the EU was bipartisan US policy, to promote burden-sharing and counterbalance first the Soviet Union and then Putin’s rogue-state.
In any event, it’s hard to see a trade deal with the US this side of the election and quite possibly thereafter, if Nancy Pelosi remains in post and implacable. Does this mean that Brexiteers should be rooting for the incumbent on 3 November? It won’t make much difference to Ms Pelosi and there are plenty of other reasons to find this a disagreeable proposition. Even so, I can understand why others might warm to it.
It has taken excitable journalists and Leaver politicians longer than it should to grasp how they got played. Now, however, the penny has dropped. The timing gives away Boris’s intention: to deploy his Commons victory as an attitude adjuster in Brussels. If all he wanted was an insurance policy, he’d have waited to bring in the bill - ie, to after mid-October, taken as the deadline for negotiations. In other words, it’s the last throw for a deal.
In this light, the (orchestrated?) objection of Tory Leaver grandees was grist to his mill: it shows the EU that Britain no longer has any effective domestic opposition to even the most hard-nosed negotiating position. Note how easily the Commons rebels were mollified. On this view, look for May, Major and Howard, posing for reconciliation photos with Boris and Cameron at a Number Ten reception next summer.
If this is right, the combo of roughness and tactical guile of this flutter in the dovecotes - disrespecting norms, to provoke a futile response from one audience, so as to make a statement to a second audience - smacks of Cummings. Some might be tempted to say, “nicely done”, as forcing the EU back to an existential challenge it thought it had dodged, placing Ireland in an impossible position. Their fury tells us that Boris’s manoeuvre has grabbed their attention and - contrary to my long-standing view - makes a deal that much more likely.