Did Brexit change anything?

Posted on 24th February 2022 by admin

Stormy

This week I went to a conference on ‘British politics after Brexit‘. We didn’t talk about Brexit very much, among the swirl of partygate, shifting opinion polls and questions over the viability of the Union. Which prompts a question about whether Brexit changed much and whether there’s still much impact of Brexit.

I ask these questions largely because to listen to much of the discussion, things are much as they ever were. Smaller parties feel locked out of the majoritarian electoral system, the non-English bits of the Union feel ignored by London, the demographic shifts to more-educated voters continues. All of this was as true in 2015 as now.

And yet, the conference did underline how Brexit has acted to reshape the political landscape. The report that accompanied the event draws this out in various ways.

Firstly, public opinion has been shifted and conditioned by the Brexit experience. The 2016 referendum and the following year’s general election resorted voting preferences to make party stances better match individual preferences, where before these had sat somewhat across both Tory and Labour core voters. Remain & Leave identities have weakened slightly, but 80% of people still express ‘fairly’ or ‘very’ strong positions on this cleavage, well beyond any party political affiliation.

Moreover, dissatisfaction with the unfolding of Brexit has grown in the period since the fuller effects of being outside the EU have been experienced, albeit possibly exacerbated by continuing Covid effects too. That notwithstanding, the potential for parties to exploit this unhappiness is considerable and suggests more repositioning in the UK-EU relationship is likely, even if there isn’t any robust majority for rejoining (and that’s even before we think about whether the EU would want the UK back in).

Secondly, party politics has also been scarred by Brexit. The Tories have flushed out most of their pro-European elements, but have still to settle on a clear vision of what Brexit is for: still the impression is of a grab-bag of ideas, rather than any coherent and integrated story that can be sold to voters. Labour (and the LibDems) have decided that Europe is an issue best avoided for now, partly because the fruits of the cost-of-living crisis hang much lower and partly because of the experience of the 2019 general election, where the Tories could wield the ‘will of the people’ line of argument.

Brexit thus matters in party politics through its absence as much as its presence: the mobilising idea that carried the Tories through the 2010s – get Britain out – has now gone, but without a replacement. That hurts not only the two big parties, but also the smaller ones, especially for those who could use Brexit as a piggy-back ride to greater prominence. The big realignment along cosmopolitan/parochial lines that seemed possible in 2016 was hindered by the electoral system, so that moment has passed and raises a question of what scale of disruption would be needed to occur in future.

Finally, the settlement of the Union is placed under much more strain by Brexit. Northern Ireland is the key case here, with the Protocol heightening tensions ahead of the Executive elections. Whether and how a solution that is acceptable to all sides can be found is deeply unclear at present, especially with UK-EU negotiations effectively now on hold until after the campaigning.

But problems have also grown in Scotland and Wales. The strengthening local identity has been driven in large part by the feeling of England driving major constitutional change over local needs. For Scotland, that has fed the independence debate, while for Wales it has produced a shift towards more robust devolution.

If this all sounds a bit self-serving, given that I study Brexit, then also recall that major shifts in political systems rarely occur overnight. Even catastrophic military defeats take time to produce new models of government and governance: precisely because Brexit isn’t such a defeat, the imperative to effect speedy change is absent. Instead much of Brexit’s effects have been submerged in other processes and dynamics (much of what I’ve mentioned above was also a cause of the vote to Leave in 2016), so the secondary (and much bigger) impact of leaving the EU, beyond the actual withdrawal, was always going to take much longer to become clear.

In summary, even when we’re not talking about Brexit, we’re talking about Brexit.

Posted in Uncategorised | Tagged , , | Leave a comment

Building a Parliamentary post-Brexit relationship

Posted on 10th February 2022 by admin

After much delay, the membership of the Trade & Cooperation Agreement’s (TCA) Parliamentary Partnership Assembly (PPA) was finally settled in late January.

The Assembly is an advisory body to the TCA’s main Partnership Committee, “a forum to exchange view on the partnership” as the treaty has it (Art.11). Twice-yearly meetings will provide an additional line of communication between the UK and EU.

Members are drawn (35 apiece) from the UK Parliament and European Parliament: key information is summarised in the table below.

A number of points are worth noting on the profiles of each side, of which the central is that this is very much like other such bodies: very many of these relatively informal assemblies exist, attached to other trade deals, and so there’s no major surprises.

Given the lack of substantive powers, the PPA mostly attracts those with an interest in the subject matter. On the EU side, that means a lot of MEPs from states close to the UK, people with family or professional connections there and many members of the Foreign Affairs committee. On the UK side, it means several former MEPs or people with former roles relating to the EU and a healthy number of the Lords EU committee system.

Both sides contain a wide range of views on Brexit itself. The British range from strong Remain campaigners through to some of Leave’s leading lights, while the EU go from former ministers of European affairs to critics of the EU’s approach to the withdrawal negotiations. As such, the PPA isn’t automatically a cheerleader for the TCA or the rest of the EU-UK arrangements.

The spread of members reflects the different logics employed by each Parliament. The UK has a majority of Conservative members, a majority of MPs over Lords, plus some places for representatives of the four nations. The EP delegation is divided in accordance with the size of parliamentary groups and with some eye to geographic diversity: it also has a full set of substitute members, as against the 12 British ones.

The graphic below also highlights one interesting point: the representation of committees in the delegations. The EP delegation covers almost all the main committees, skewed towards Foreign Affairs, International Trade and Economic & Monetary Affairs; the UK has far fewer committee members to hand beyond the Lords EU Committee and the Commons International Trade Committee.

However, it is important here to note that while all MEPs sit on at least one committee – these being a key location for any substantive discussion on policy – most MPs or Lords do not – reflecting the centrality of the plenary sessions in their respective Houses. Nonetheless, it does raise some questions about how far British members will be able to get into substance should the need arise: the disbanding of the Commons’ select committee on Exiting the EU means there is no obvious place in which to locate expertise, beyond the individual capacities of former members such as Hilary Benn.

If there is one difference with other similar assemblies, then it is that this one has yet to meet, and so we do not know whether it might develop into something of substance.

This looks unlikely, partly because of the nature of it all, but also because of the long delay in getting it up and running: the TCA agendas are already in train and the British government-Commission relationship is in place (if not very happily). The space for the PPA to make its voice heard is relatively small, even before we consider the impact of its diverse internal voices. However, in the context of a long-term rebuilding of trust between the two sides, it will be a key venue for the exchange of ideas and the creation of links.

Posted in Uncategorised | Tagged , , , | Leave a comment

Timelining Brexit

Posted on 3rd February 2022 by admin

As I seem to find myself regularly explaining, Brexit is a process, not an event.

Which is all well and good, but also a bit problematic when you want to work out the appropriate context for that process.

At one level, it is evidently simply part of a much longer process of developing British European policy, certainly in the post-war period, but also arguably in the longue durée sense of British history.

At another, you can work from the rise of euroscepticism in the late 1980s in British politics and the ways that worked through to the present.

And on another, it’s that period since David Cameron made his commitment in 2013 to hold a referendum on membership.

Which level to approach it on depends, obviously, on what you’re trying to understand.

For the diagram below, I’ve focused on the period since the 2016 referendum, because I want to mark out the key moments in the formalised process of withdrawal, as far as we have them.

The diagram covers negotiations and the ratification of agreements, plus the start of implementation, on both sides of the table. I’ve also added in some key relevant moments in British politics, because those matter too in the story of this five and a half year period.

For those using this in teaching, you might consider how the domestic level and the negotiations marry together: periods of crisis in the UK often preceded the conclusion of talks, but does the former lead to the latter?

Likewise, you might use this to highlight the open-ended nature of this process. Implementation is not a steady state – as the Protocol discussions amply demonstrate – but rather a new set of negotiations and reviews that stretch into the distant future. As such, the question is how much as actually settled and how far does the system move from its January 2020 baseline?

Of course, that is another process.

Posted in Uncategorised | Tagged , | Leave a comment

A new year of Brexiting

Posted on 13th January 2022 by admin

The arrival of 2022 has brought both continuity and change to the UK’s relationship with the EU.

The resignation of Lord Frost in December has precipitated a major reorganisation (possibly still on-going) of the government’s management of EU and Brexit affairs, but the new point on the relationship – Foreign Secretary Liz Truss – has very much stuck to the same talking notes on the Northern Ireland Protocol as her predecessor.

The reorganisation starts to break up the significant collection of roles that Frost had built up in the past couple of years, probably more because of his proximity to Boris Johnson than through any conscious project of coordinating the multiple aspects of the work.

The move of the bilateral relationship out to the FCDO fits with a more natural model of diplomacy, and normalises EU relations as just part of the furniture, but it comes with a number of real challenges for Truss and her junior minister, man of letters Chris Heaton-Harris (who is presumably going to be even more delayed with that book).

Firstly, WA and TCA implementation covers a wide range of departments’ activities, so lots of coordination will be needed. Secondly, Johnson will retain a big interest in the portfolio, so handling the FCDO-No.10 connection will also need much attention.

The work on borders and on ‘Brexit opportunities’ is still up in the air; as Jill Rutter well argues, each could be well snaffled up by other departments, either as an on-going whole or in parts. That this remains unaddressed in the near-month since the FCDO move suggests stasis is the more likely option, given the limited shelf life of each project.

The graphic below summarises the changes and we’ll come back to it as anything happens.

On the continuity front, the switch from Frost to Truss has also seen the continuing ambiguity about how hard the UK wants to push to close the Protocol negotiations with the Commission. The initial contacts with the latter seem to have been couched – again – in terms of getting things sorted ‘as soon as possible’, rather than to any fixed timeline.

One question that lingers is that of whether the continued threat of using Article 16 carries either any weight in Brussels or even any seriousness in London: certainly, it has the air of being ritualistically waved about, rather than being ready to go.

I’ve discussed this question in the newest episode of A Diet of Brussels, and didn’t really come to a clear conclusion, mainly because the increasingly wounded Johnson might still go either way on this. Invoking Article 16 might be a way to rally the party to his cause once more, but it also risks making the ‘doneness’ of Brexit even more open to question.

So all still to be settled then.

Just like last year. And the ones before that.

Posted in Uncategorised | Tagged , , , | Leave a comment

More Brexit, part. 648

Posted on 9th December 2021 by admin

As we’ve noted previously in this blog, Brexit is a process, not an event. With the drawing in of the year, we might usefully revisit this notion, since there’s more of the process heading our way.

You’ll recall that one side-effect of the very speedy conclusion of the Trade & Cooperation Agreement (TCA) was that the UK decided it would have a progressive introduction of the controls required, given the need for infrastructure and personnel to make it all happen.

The original plans for this were rather swift, with the intention being to have everything up and running by mid-2021. That this was somewhat ambitious was highlighted by two subsequent announcements of further delays, some to 1 January 2021 and others to the middle of next year.

These deferrals of controls stand apart from those relating to the Northern Ireland Protocol, which required joint agreement with the EU and which are currently on a rolling extension due to the talks that have trundled on in the past weeks. Precisely because they have implications for the operation of the EU’s single market (via Northern Ireland’s alignment to it) these cannot be solely in the hands of London.

But the TCA deals with the general EU-UK relationship, and the reintroduction of controls is a function of the weakening of ties between the two parties, which means the UK is bound to enact measures to satisfy other legal instruments, of which the World Trade Organisation is predominant.

Technically, the UK is in breach of its WTO commitments with these deferrals, but in practice no-one seems minded to challenge that. The UK is on a path towards enforcement, it has lacked the means to enforce until now, plus the EU doesn’t need another point of contention to add to the pile, plus WTO arbitration takes a very long time. So it’s been alright to slide back the timeline.

However, this still matters.

The National Audit Office has been producing very useful reports for the past three years on UK readiness, including on these systems. The most recent came out last month and is worth a read as a balanced view of where things are at.

On these elements, the picture has gradually improved, with much of the work now in place to make 2022 enforcement a viable option. At the same time, the NAO rightly points up the considerable uncertainty about demand management and the impact on trade flows, plus the wider impact of the changing nature of the UK border.

While Northern Ireland has (rightly) been more visible, it will be cross-Channel business that will have a bigger economic impact in the long run. Until the UK has settled its systems and procedures for this, it will be hard to know more properly how Brexit is reshaping the economies on both sides of those waters.

Posted in Uncategorised | Tagged , | Leave a comment

High- and low-stress holding models

Posted on 25th November 2021 by admin

Learning to blah, blah, blah (Source)

A while back I wrote about the UK’s approach to the Withdrawal Agreement (WA) and Trade & Cooperation Agreement (TCA), arguing that this was driven by a lack of strategic intent, resulting in constant efforts to keep things up in the air.

In so doing, the UK aims to avoid falling into any settled pattern of interaction with the EU that would – by the simple facts of its existence and stability – provide a template for future relations.

Put simply, the UK doesn’t seem to want to find itself stuck in a rut, with all the path dependency and sunk cost issues that come with that.

At the time, the way the UK was pursuing this objective of intentional instability was through a high-stress holding model.

This involved an active campaign of raising problems with the treaties (both on what they contain and what they don’t contain) plus non-implementation (or at least very slow implementation).

Hence the seemingly endless list of problems that could be drawn upon, from the role of the CJEU to VAT rules. The spring’s challenges of chilled meats in Northern Ireland might have been met by the Commission’s proposals this autumn, but the UK had already run on ahead to the next thing.

This coupled up with very strong language about using provisions such as Article 16 of the Northern Ireland Protocol, to attempt to create an image of being ready to walk away from it all, for the noble intent of protecting peace.

A review of this model suggests that while it might have nudged the Commission to offer more than it might have on the Protocol implementation problems, it has largely not worked and has little prospect of working.

At the root of this failure has been a lack of conviction on the EU’s part that the UK would make good on its promises/threats. Yes, the WA/TCA combo has its problems, but these are as nothing to the costs of pursuing any other route. The UK can’t unilaterally change the terms of the treaties, and the economic and political damage of collapsing them both (and the EU has been very clear that they are a linked pair) should be evident to even the most die-hard Brexiteer.

If the UK doesn’t have a credible alternative (and also doesn’t have a hard consensus that it thinks it has one), then the threats look empty and the main effect is simply to weaken trust. Which is a problem if you’re aiming to get buy-in to any new system you might propose.

Hence the apparent shift in the past couple of weeks to what we might term a low-stress model.

Instead of the active antagonism, there is instead engagement in negotiations, covered by a rhetorical frame of trying to solve problems together.

However, given the very slow pace of those discussions, it looks more like a move to kick things into the very long grass of endless debate.

Yes, there’s interaction, but it also allows for a ‘temporary’ suspension of punitive measures and of full implementation of treaty provisions. In short, it creates its own version of the stable situation trap: the UK gets to say in 6 months that obviously these temporary arrangements work.

Of course, the EU is well aware of this, and is looking to move negotiations to some conclusion in short order. But the ability to combat this low-stress approach is rather less. The Commission might have its spectrum of responses in place for an Article 16 notification, but it’s much harder to avoid looking ungenerous when faced with a counterparty that wants to talk.

But it’s not impossible, and at some point it becomes difficult to mask that you’re stringing out talks for their own sake. Even if that means a less fraught outcome than a collapse of the high-stress model, it still leaves the UK having to make a decision about what it wants. And there’s still no sign that it has any sense of achieving that under this government.

Posted in Uncategorised | Tagged , , | Leave a comment

WA/TCA Committee Tracker, November 2021

Posted on 18th November 2021 by admin

As part of this blog’s ongoing monitoring of the two treaties, we regularly produce a tracker of meetings of the various bodies that they have set up.

These trackers are useful at a number of levels.

Firstly, the level of overall activity provides an indication of the vibrancy of the treaty and the extent to which the parties see it as the appropriate forum for handling issues: witness the volume of activity in the Withdrawal Agreement committees in the wake of its entry into force, to try to iron out the numerous implementation issues, most obviously on the Northern Ireland Protocol.

Secondly, the speed of setting up specific bodies points to relative priorities within the treaty framework. Thus the Trade & Cooperation Agreement – with its numerous organisational structures – has only one body that’s meet more than once: fisheries.

Finally, over time, it helps us to see how the pattern of moving from initial implementation issues to more regular operation works in practice. If the WA appears to have started to move towards the latter phase, with minimal activity this autumn, then the TCA is still very early on in its life-cycle, with much still to come into operation.

In the context of the wider EU-UK relationship, this matters, especially given the on-going uncertainty about the Protocol – and thus the entire WA/TCA architecture. If the UK were to unravel the Protocol with an Art.16 notification then the two treaties lack deep institutional roots that might help to contain the ensuing crisis. Even the WA hangs somewhat in the balance given the integral nature of the Protocol.

Of course, Art.16 would make these trackers a trailing indicator for the period of the crisis, but if the treaties were to stand, then they might also eventually come to be leading indicators of a rebuilding of relations.

Something to keep in mind in the coming months.

Posted in Uncategorised | Tagged , , , | Leave a comment

Crisis measures

Posted on 11th November 2021 by admin

As we reach the end of the COP26 hiatus on Brexit the signs are not good. Reports from the talks on the Protocol are that progress isn’t occurring, even with the Commission’s striking opening offer.

This is all less than unexpected: the UK’s ask on ending the role of the CJEU in the Protocol never looking remotely viable and there has been no interest in using the Commission’s proposals to climb down from the flashpoint either.

COP26 might well have given a bit of breathing space, but only to something that looks heavily timetabled.

With that in mind, the moves on the EU side have mostly been about signalling intent to hit back hard should the UK follow through on Art.16. As Rahman has suggested, that might include both short- and long-term elements.

We’ve covered Art.16 itself enough for the issues to be relatively clear. As Howse points out in his new commentary on the provision, there’s rather more constraint than might first be apparent, but this also limits the direct response too.

As a result, it serves the EU to keep things broad-based, to make the matter less contained and to be less dependent upon the single provision.

There is plenty of flexibility about the implementation practice for both treaties, as the French had already identified in the Jersey impasse (also still not resolved, it should be noted), but the TCA also allows for some additional actions.

The graphic below sets out the suspension and general termination clauses for that treaty.

As you’ll see, suspension is more complex and requires a rather tough case to be made for justifying its use, based on a failure by the UK to apply rule of law. Art.772 doesn’t simply need some evidence of this – e.g. should the UK try to effectively remove the CJEU from the NIP – but also needs this to be a ‘serious and substantial failure’. That the CJEU hasn’t been used at all so far in the NIP’s operation becomes here a problem for the EU, as impairment of rule of law becomes that much harder to demonstrate.

Even if you can overcome these thresholds, there’s still a problem of proportionality requirements, which stop the EU from going wild with their response.

By contrast, Art.779 termination is a doddle: just put in your letter of notice and that’s that. There are even options to just terminate Goods or Judicial Cooperation, so there’s a bit more flexibility.

The process in this case would be entirely political, with the option to end the termination by joint consent.

I’ll admit to a degree of discomfort about all this. If the UK play chicken on this, then we end up with at least a partial non-application of the WA/TCA framework, which will make it harder to defend what remains. Trust will be even thinner on the ground than it has been, and the willingness to even start to consider new options will be vanishingly small.

Which makes the key question next week one of whether the UK really wants to go down this road. It will be one that offers minimal prospects of the EU moving off its lines on the Protocol, while definitely bringing a pile of economic and political pain. Yes, that pain will hit both sides, but much more on the UK.

Is the domestic political gain that might accrue really worth it?

Ironically, the continuing absence of a UK plan makes it seem more likely so: if you don’t have an end-point to defend, then you can wallow in the pain that much more easier.

Posted in Uncategorised | Tagged , , , , | Leave a comment

What the Jersey fish tale tells us about the TCA

Posted on 4th November 2021 by admin

Today sees a meeting between British and French ministers to discuss the vexed question of fishing licences for Jersey waters. This event is important for a number of reasons.

Firstly, it’s the pathway that got opened up earlier in the week by the French decision not to move to unilateral sanctions over the issue, so that’s a positive development for talking through problems rather than laying down more harsh rhetoric (as both countries have been doing of late).

Secondly, it’s a reflection of the outsized importance that this issue has acquired over the past weeks, compared to its economic (or even its symbolic) value. This is a reflection of the wider low-trust environment that the UK operates in with both France and the EU.

But finally, it’s also the first time that the UK will have secured a bilateral meeting with an EU member state to discuss provisions of the Trade & Cooperation Agreement (TCA). The rigour of keeping to the Commission as the interlocutor on such matters has been exceptional and even the very particular nature of the matter might give others some pause for thought, not least Ireland.

In this context, Jersey might turn out to be an important demonstrator of things to come, even if the practicalities involved are somewhat mundane. Given that this is all a sideshow to the looming return of Article 16 – which is a very much bigger problem – we might loose sight of this rather quickly, especially if a deal can be worked out.

However the entire episode has also underlined a number of issues with the TCA that are likely to be repeated down the line.

Most obviously, the situation seems to have stemmed from different interpretations of Art.502(1), which requires that historical access to Jersey waters ‘can be demonstrated’. The necessary level of proof is not specified and this appears not to be a practice that can draw on any significant international law: littoral states that break-up and that divide their waters between successors tend not to offer on-going access at all.

The UK government took a rather firm line on all this, asking for GSM traces and the like, something that smaller French boats couldn’t provide because they don’t carry that kind of equipment. As have been pointed out elsewhere, this was a technical issue that was allowed to escape into chancelleries, with all the additional costs that’s incurred.

The vagueness of the provision is only underlined by Art.502(4) which allows for the entire arrangement to be changed without a full ratification process, suggesting this was at best a stop-gap. Perhaps this also explains the noticeably more constrained and proportional range of remedial measures that can be applied in the event of alleged non-compliance (Art. 506(2)) which means that even if the French had been able to convince the Commission to start on this – already a very big uncertainty – then remedies wouldn’t have stacked up to much.

Again, given the more general reading of the TCA – with its multiple dispute settlement mechanisms, regular reviews and termination clauses – this argues that this set of provisions wasn’t fully nailed down, so minimising contagion made more sense.

We can rehearse the reasons for the hurried nature of the TCA’s negotiation, formulation and ratification and who’s at fault for what, but ultimately none of this changes the situation as the parties find it now.

Indeed, it is this aspect that more forcefully comes back to Northern Ireland and the Protocol.

The UK narrative of late has been one of negotiating the TCA during a period of ‘extreme weakness‘, a bold claim given that ratification only came after the landslide of the December 2019 general election. That aside, the Jersey issue has risked playing into that narrative framing, even if it is within the current text and very much smaller. France does have a presidential election on the way, but it also doesn’t want to be the one to crash the already-beleaguered relationship. Hence the Commission’s refusal to accede to French demands to launch measures under Art.506.

If there is a silver lining, then it was the British protestation that French actions would result in the UK bringing proceedings under the TCA’s dispute settlement mechanism. The rhetoric of the need to stick to the provisions of the treaty raised some hollow laughs elsewhere, after the Internal Market Bill and the suggested use of Art.16 to remove the CJEU from the Protocol, but it does show that there is a logic available to working with what you have.

Unfortunately, it has also underlined very clearly that there is a very long road to travel before relations across the Channel can get back to the level they more usually enjoy.

 

Posted in Uncategorised | Tagged , , , , , | Leave a comment

Making sense of the UK’s approach to the Protocol

Posted on 21st October 2021 by admin

Just a short post this week, since I already wrote about this in a Twitter thread earlier in the week:

The thread was an attempt to make sense of what the UK is doing and whether it might work. As you’ll see, I’m not that confident that it will. Conversations with people on both sides this week haven’t changed my mind on that either.

Part of that is the low trust environment that exists. The number and quality of connections that the EU has with the UK are both relatively low, which means there are fewer opportunities for the kind of frank discussions that might find a way through the current impasse.

As a result, the weight of rhetoric (on both sides) increases in the calculation.

To take an obvious example, the unwillingness of the UK to publish its replacement text for the Protocol makes it impossible to work out a more dispassionate understanding of its needs, so we have to fall back on the words of Lord Frost or Boris Johnson, with all the additional complexities that brings.

Even if the Commission proposals last week do leave various points to be precised and elaborated, at least they work more transparently towards a new set of agreements (or implementations of existing agreements, to be more exact).

This shouldn’t be that surprising – I noted in evidence back at the start of the year, for example – but that doesn’t change the situation as we find it.

Rebuilding contacts and conversations is going to have to be a priority if things are to start to improve between the EU and UK, and it’s probably the UK that has to start that.

I’d not hold your breath right now.

Posted in Uncategorised | Tagged , | Leave a comment