By Brendan Donnelly, Director, The Federal Trust
1st November 2017
In his recent testimony to the House of Lords, Sir Ivan Rogers, former British Permanent Representative to the European Union, criticized as premature and ill-prepared the Prime Minister’s triggering last March of Article 50 of the Lisbon Treaty. This is unfair to Theresa May. No different date for the beginning of the Brexit negotiations could or would have rendered them any less painful for the British participants. No amount of extra preparation on the British side before triggering Article 50 could or would have resolved the numerous internal contradictions of the Brexit project.
The inability of David Davis and his colleagues to make the hoped-for progress in the Article 50 discussions does not stem from Mrs May’s tactical ineptitude or clumsy negotiating tactics. It stems rather from the traumatic confrontation between the collective fantasy of the Conservative government which is Brexit, and the economic and political realities represented by Michel Barnier. It is still an open question what the precise outcome of this confrontation will be for the Conservative government. But it was a confrontation that could never have been avoided by juggling with dates or more intensive preparatory discussions.
It is not always realized in this country, even by eminent commentators, just how different are the starting-points in the Article 50 negotiations between the British government and the EU. The British side has a single aim, that of maintaining as far as possible what it sees as the advantages of being in the EU, while minimizing what it sees as the disadvantages. The EU has two aims, neither of which sits easily with British aspirations. The first is to ward off harm to itself arising directly from the UK exit, be it in Ireland, in the Union’s internal finances or in the rights of EU citizens. The second aim, once this harm has been averted, is to establish a long-term economic relationship with the UK which is mutually beneficial, but which appropriately and demonstrably reflects the negative consequences of British unwillingness to accept the responsibilities of EU membership. It is a familiar mantra of British ministers that both the UK and the EU have an interest in coming to an agreement for an orderly British withdrawal. The often unacknowledged problem with this formulation is that the two sides define their interests in these talks in such radically different and probably incompatible ways.
Even Sir Ivan appears from his testimony to peers not fully to have grasped this chasm of differing perceptions. He chides Mrs May for not having approached other European leaders before triggering Article 50, seeking assurances that its operation would not disadvantage the UK. Mrs May was well-advised not to waste her breath on such futile petitions. Most other European leaders do not wish to punish the UK for its decision to leave the EU. But they certainly do not consider it as part of their job to save the foolish British from the consequences of their folly. Even less are they prepared to reward the seceding British by allocating them a more favourable set of economic rights and responsibilities than that they currently enjoy as members. To do so would be to undermine the economic and political foundations on which the Union stands. These foundations are of course a matter of indifference, even of contempt to Mr Davis and his colleagues. They should not assume that the same is true of their European negotiating partners. British diplomats sometimes like to claim that they are unusually skilled at putting themselves in the position of those with whom they are negotiating. That anyway doubtful claim is certainly not borne out by the Brexit negotiations.
It is entirely possible that the European Council in mid-December will conclude again that insufficient progress has been made towards realizing the first of the Union’s goals in the Brexit negotiations. Despite the apparent commitment of the Prime Minister, Jean-Claude Juncker and Michel Barnier to “accelerate” the pace of negotiation, the discussions seem to have once more entered a period of stagnation. From the British side this stagnation is blamed on the EU and its failure to make reciprocal “concessions” to those offered in Mrs May’s Florence speech. The Union does not believe that her speech calls for any reaction from them beyond welcoming it as a belated and only partial recognition of British obligations to it. It seems highly unlikely that Mrs May will be permitted by her Party in the coming weeks to go beyond the tentative formulations of her Florence speech. They almost certainly represented the outer limit of what the radical Eurosceptic wing of her parliamentary Party will ever accept. This wing probably does not have a numerical majority among Conservative MPs. Mrs May knows however that she will not continue to occupy 10 Downing Street very long without at least this wing’s acquiescence and ideally its support.
Mrs May’s supporters supposedly drew some comfort from the decision of the European Council in October to begin preliminary internal discussion on a possible long-term trade agreement between the UK and the EU. Whether this comfort is well-founded must be more than doubtful. If by the time of the next summit the outlines have emerged of a new proposed relationship between the two parties, it is extremely unlikely to be one attractive to the current British government. Mr Barnier’s remark that the UK would not be allowed after Brexit to combine the rights of Norway under the EEA agreement with the obligations of Canada in its free trade agreement was probably intended as a statement of the blindingly obvious. It could not however be clearer as a rejection of precisely the goals of the British government. The hope and indeed expectation of many in the British government and elsewhere that a special, uniquely favourable (bespoke) “deal” will be on offer post- Brexit is the purest fantasy. If there is a finally negotiated arrangement, it will faithfully reflect the template already established by the Union in its dealings with other third parties. The more the third party is prepared to accept the responsibilities of Union membership, the greater will be its access to the rights of membership. Yet Mrs May has made clear that her government rejects the responsibilities of membership of the Customs Union and membership of the single market.
If, as seems entirely possible, the European Council of mid-December refuses to move onto the second phase of negotiations, while at the same time sketching out the limitations on what it might anyway be prepared to offer in this second phase, much will change in the domestic British debate around Brexit. The two alternatives described long ago by Donald Tusk, of a “hard Brexit” or “no Brexit” will be brought more sharply into focus, with perhaps differing consequences for two crucial audiences, namely for the Conservative Party and for British public opinion more generally. Of the two audiences, the Conservative Party is perhaps easier to gauge in its likely reaction.
The past six months of internal debate within the Conservative Party have established an important dividing-line between those who wish after Brexit to remain closely involved and aligned with the EU and those who do not. The first camp regards with horror the prospect of a non-consensual Brexit and would cheerfully embrace a lengthy transitional phase so as to soften and postpone the pain of parting. The second camp is eager to leave the Union as soon as possible and is either indifferent to or even welcoming of an abrupt termination to the Brexit negotiations. The prolongation of the present stalemate in negotiations after December would undoubtedly be seized upon by this camp as proof positive of European unreasonableness and intransigence. Pressure upon Mrs May would inevitably grow for the hardest of hard Brexits.
How British public opinion more generally would react to the prospect of leaving without an agreement is more difficult to predict. During the referendum campaign those favouring Brexit fell consistently into two camps: one saying leaving would involve no significant economic cost to the UK; and another accepting potential economic disadvantage but prepared to accept this risk in order to restrict free movement, escape the jurisdiction of the European Court of Justice or end payments into the EU budget. Given the increasing vigour with which British business and financial interests are now warning that a “cliff-edge Brexit” would be damaging to economic well-being, it is difficult to believe that such a prospect would be a matter of indifference to the first of those two camps. Until now, the Conservative government has been able to keep in some sort of harmony these two sorts of Brexit supporter. If and when it becomes clear that there is no “good deal” on offer, that we cannot have our cake and eat it, that Brexit is far from a cost-free option, all the reasonable expectation must be that it will change at least some minds among the wider British public. To what extent and how quickly this will occur is difficult to predict. It is certainly true that for Brexit to become politically preventable a greater shift in British public opinion than has occurred so far would need to be apparent over a significant period of time to decision-makers in Westminster.
Within the Conservative Parliamentary Party a significant body of opinion would simply ignore any changes in public opinion away from support for Brexit. The 2016 referendum, with its lofty talk of “popular sovereignty” was for them simply a manoeuvre to achieve British withdrawal from the EU, a goal they knew they could never achieve by Parliamentary means. Having won the referendum, they have no intention whatsoever of being deprived of the fruit of their victory. Equally within the Conservative Parliamentary Party there is another, probably smaller minority of those who are unreconciled to Brexit and will use almost any perceived shift in public opinion as the occasion for making more explicit their unease about the entire process. To render matters yet more complicated, there is the central majority of the Conservative Parliamentary Party which regrets the prospect of Brexit but will not be prepared to say so publicly until it is politically safer to do so. It is a familiar and justified criticism of the Conservatives that they put Party interests above those of the country on the European issue. This criticism is particularly applicable to those like Ken Clarke who claim to understand the central importance of the EU to British political and economic stability, but have acquiesced in the Eurosceptic annexation of their Party. A dramatic change of British public opinion on European policy over the coming months might however give this silent majority among Conservative MPs the political cover they think they need to become more outspoken.
It is inevitable that political analysis and commentary should focus in the first instance on the Conservative Party. This focus has been encouraged by the studied ambiguity of the Labour Party, led by a long-term EU opponent and shocked by the number of traditional Labour voters, particularly in the North of England, who voted for Brexit. Until now Jeremy Corbyn and the dissident voters of Sunderland have sufficed to mute Labour’s opposition to the Conservative Party’s ill-thought out plans for Brexit. There is however reason to suppose that gradually this apprehensive discretion may be abating. Sir Keir Starmer seems gradually to be edging his party towards rejecting the only kind of Brexit likely to be on offer, a chaotic, non-consensual affair which it will be easy to claim no elector voted for last year. Changes in public opinion provoked by fear of the Brexit “cliff-edge” will be as welcome to Sir Keir and his colleagues as they will to their discreet equivalents in the Conservative Party. The spectacle of two thirds of British MPs awaiting permission from the opinion polls to articulate their views on Brexit is an unedifying one, but it is the distasteful reality.
It would be a bold person who would predict with certainty whether Brexit will occur on its appointed date in March 2019. Much has been made of issues relating to the revocability or otherwise of the Article 50 notification, to the desirability or otherwise of a second British referendum on the terms of Brexit and to possible reconfiguration of the British party political system. Whether Brexit occurs or not resolves itself in the last analysis into a simple question. As the negative consequences of Brexit unfold and become more manifest, will there be enough MPs from a range of parties with the courage and conviction to stop it? So far, this is emphatically not the case. Despite its spectacular incompetence and bad faith, the present Conservative government still determines the Brexit discussion in the UK. It is however entirely possible that changing public opinion will interact over the coming months with latent (and not so latent) concerns among many MPs to produce a substantial majority hostile to the only kind of Brexit which can realistically be achieved. If that is so, questions about the revocation of Article 50, a second referendum and new political parties will fall into their as yet unpredictable place. It would be a stupendous but entirely conceivable irony if next year’s robust assertion of British Parliamentary sovereignty was not to embrace Brexit as a resumption of “control” but rather roundly to reject the whole Brexit chimera.