How the Brexit negotiations can end without war being declared, asks Denis MacShane? What’s needed is a compromise, which used to be a British speciality, he argues.
Pacta sunt servanda – treaties must be observed – is an ancient rule of relations between states. Britain has been busy for centuries signing Treaties governing its relations with other states or multi-state entities as well as international organisations like the UN, the WTO, or the EU. Until Brexit the UK’s relationship in most areas with other European sovereign nation states has been fixed by various treaties such as the Treaties of Maastricht, Nice, Lisbon, or the Single European Act treaty negotiated by Margaret Thatcher introducing the Single Market.
Last autumn Boris Johnson, the new prime minister, ordered his chief Brexit civil servant, David Frost, a former UK ambassador to Denmark and director of the Scotch Whisky Federation, to reverse existing UK policy and accept proposals from the EU formulated by Michel Barnier, to write into a new Treaty, the Withdrawal Agreement, guarantees that there would be no border checks in the north of Ireland between the six counties in the UK and the rest of the Republic of Ireland.
Lost in the justified applause at Johnson’s repudiation of both May’s negotiating position and his dismissal of extreme Ulster protestant MPs’ refusal to accept the only way the Good Friday peace agreement could be maintained was by putting all of the island of Ireland under EU rules for trade was the dramatic change in the status of the six counties following the new Withdrawal Treaty accepted by Johnson. The rest of Britain was not much concerned and glad that the Brexit blockage associated with the Theresa May years in Downing Street were over and gave Johnson a handsome majority in the December 2019 election.
Good diplomacy and a good treaty led to a good political outcome for the Tory Party and for Boris Johnson. But he had to tell David Frost to reverse his position and showed that political leadership was what mattered. The DUP were eliminated as a force in Westminster politics and the big increase in Tory MPs gave Johnson an unassailable political base.
Johnson has spent most of his life as a journalist. He was famed for late delivery of copy and never getting down to write his columns until the deadline was nearly past. It is hard not to see the same modus operandi in his management of Britain since the election. The COVID-19 crisis has been plagued by endless confusion and policies that were swiftly reversed or altered. Johnson still looks tired and erratic which given the after-effects of the COVID illness on an overweight man, heading to his 60s, with a brand new baby and girlfriend, is not surprising. But just as Johnson would chop and change his copy to the last moment so too he slaloms through policy decisions always looking for tomorrow’s headline that shows him commanding the ship of state without any real sense where it should be heading.
The Labour Party is still licking its wounds after the unhappy Corbyn years which were also marked by endless confusion and mixed messaging on Europe and Brexit reflected in TV and radio interviews by shadow cabinet members where they regularly contradicted one another. Sir Keir Starmer has adopted a policy of “Say No Brexit. See No Brexit. Hear No Brexit”. This has the merit of shutting down Labour divisions and also making clear Brexit is 100 per cent the responsibility of the prime minister.
Enemies and dangers abound
In 2015, David Frost, wrote that Brexit negotiations should be led by a senior minister and done on a bi-partisan basis. This just demonstrated the naivety of many a mid-rank FCO diplomat who know their trade well but are amateurs in politics.
Brexit is the most intensely partisan issue in internal Tory politics since the Irish question of the 19th and early 20th century. Johnson has very little interest in the content of any Brexit deal as long as it keeps his party reasonably united behind him. Hence all the headlines and briefings to the newspapers read by Tory MPs and party activists – usually the Daily Mail and Telegraph with the odd bone thrown to the Sun with its fast-declining circulation.
Johnson has two major and one minor political fears. He is now realising that a hard or crash-out Brexit – usually referred to as a WTO, or Australian or Canada style Brexit – will play into the hands of Nicola Sturgeon and lead to a massive increase in the vote for the SNP and a new referendum on independence at the elections to the Scottish Parliament in Holyrood, Edinburgh next May.
He also knows that chaos at the border ports of England like Dover in January 2021 with huge queues of trucks on Kent motorways will play in Labour’s hand as Sir Keir Starmer and many business leaders and road hauliers will berate Downing Street for sheer incompetence.
He also has to keep an eye on ageing hardliners in the Tory party like Sir John Redwood, David Davis or Iain Duncan Smith. But most Tory MPs will hail any deal with the EU if Johnson uses his demagogic style to say it is what Britain and the Tory party want.
In June 2016 just after the referendum, Johnson wrote that trade with the EU could continue as normal, access to the Single Market would continue and British citizens could work, and settle in Europe as was the case under EU membership. All of this will be exposed as nonsense if a hard Brexit happens. Australia and Canada do not send 10,000 lorries a day into England carrying 85 per cent of the nation’s fresh vegetable and fruit, along with 60 per cent of the bacon, sausages and ham we eat.
Johnson’s latest line about rejecting the treaty obligations under the Withdrawal Agreement produced a furious reaction as Britain was seen to be threatening to dishonour its word as a nation when the WA Treaty was signed. The EU Commission president, the mild-mannered Ursula Von Der Leyen tweeted:
I trust the British government to implement the Withdrawal Agreement, an obligation under international law & prerequisite for any future partnership. Protocol on Ireland/Northern Ireland is essential to protect peace and stability on the island & integrity of the single market.
— Ursula von der Leyen (@vonderleyen) September 7, 2020
Von Der Leyen is Angela Merkel’s closest associate in German politics since 2005 and it is safe to assume that her attack on Johnson had the blessing of Berlin. The Irish foreign minister and other senior serving EU ministers have all said it is inconceivable that Britain would so dishonour its word.
In Washington, Nancy Pelosi, who controls the House of Representatives, said there was no question of Congress voting a US-UK free trade agreement if Johnson repudiated the Withdrawal Agreement and a hard border was imposed in Northern Ireland for the normal legal checks between the EU and a third country.
Is there a way out?
No 10 has made a great deal of fuss about the need for the UK to be allowed to increase state aid outside EU norms. Clearly no country can easily accept open trade with a neighbour who massively subsidises its firms to trade at low prices and dump goods or service on the markets of its neighbours.
But EU state aid is very flexible. At the moment the UK is in the lowest quartile for state financing of economic actors. It would increase state aid four-fold to £61 billion about twice the size of the defence budget and still be within EU rules.
The EU rules do not prevent Member State governments from focusing aid on their own legitimate policy objectives including regional development which could help the so-called “red wall” seats in de-industrialised regions of the north and Midlands.
As it is the EU has increased state aid to €2.9 trillion to be spent on 288 programmes in response to the COVID pandemic’s hit on the economy. It is surely possible for Barnier and Frost to find words that allow the UK far more leeway in increasing state aid in response to COVID to meet Johnson’s and Tory MPs’ demands and he can then proclaim this as a victory for his tough line and bring back a bit of paper to declare he has won the Battle of Brexit with Europe.
The same is true for fishing. A crude extension of UK territorial waters to 200 nautical miles around the UK coast won’t work. Most British fishing boats are owned by foreign firms and 30 per cent of on-board fishing workers are EU citizens. In any event 60 per cent of all the UK catch is sold to Europe so there is little point in having a fishing war with the EU if UK based trawlers cannot sell their catch.
For centuries British, French, Belgian, Dutch, Danish, German and Spanish fishing communities have co-existed even with some friction at the edges. The need to preserve fish stocks which is what the EU commons fisheries policy now mainly does is an important to British fishing communities and 12,000 men and women who work in fishing as any other country. Again, it should be possible to set up a new regime based on quotas and regular reviews that can satisfy most fishing communities. If Barnier and Frost can agree this, Johnson can bring this home as a victory.
For the rest and there is a lot of “rest” in terms of financial services, professional services, education and creative industries and trade in goods, notably cars made in the UK, as well as the rights of up to 2 million Brits who live, work or have a base on the continent this is what General de Gaulle l’intendance – logistics which can be discussed and ironed out in negotiations that go into the 2020s.
Some in Brussels, and many in the Tory Party, want a big bang Brexit but that is not in Johnson’s political interests. It will be awkward for the EU and new agreements may be needed to open the door to continuing discussions after January 2021. It is not in Europe’s interests to have a major crisis on its borders with Britain nor can Johnson want endless TV reports of “Brovid” economic dislocations as he face the problem of Scottish secession, and a Labour Party back in business.
It is the Brexit Johnson promised in 2016 – one that takes the UK out of the Treaty – but does not worsen the economic future of the UK or reduce the rights of British and EU citizens to live harmoniously. It is called a compromise which used to be a British, especially a Tory British, speciality.
Might it happen? If it does it will be at the very last possible moment like everything Johnson does.
This article gives the views of the author, not the position of LSE Brexit, or the London School of Economics.
I voted remain in the EU referendum and I still think being in is better than being out. Nevertheless, now we have left the EU, I would settle for being in the Customs Union and the Single Market. But it is hoped that we would one day be able to rejoin. I feel there is no one in politics to represent my view. Now I fear that Britain is getting ready to be asset stripped by US corporations if that trade deal goes ahead. I would much rather be doing business with Europe. But the Tories, and the current PM seem hell bent, not only on damaging our economy. But trashing our relationship with other countries. I feel embarrassed when talking to my European Friends as well as my French cousins.
Respecting the will of the people. Did the Government respect the will of the Northern Irish or the Gibraltarians who voted overwhelmingly to remain and who have the right to be considered separately? Did our ex-pats get the vote they were morally and probably legally entitled to? What about Scotland, who are being dragged out of the EU against their will? That’s to say nothing of the fact that most leave voters wanted to be in a Common Market, not a hard BREXIT that we are having forced on us.
At the time of Theresa May’s deal, I didn’t want it. Because I hoped that somehow we would remain. Maybe we would get another referendum or we would just revoke Article 50. But now her deal doesn’t seem so bad compared to what is happening now.
If Boris follows your logic 17 million people will never vote for him again.
Of course compromise is needed.and the GFA should be given a chance to work for trading. At the first sign of failure all parties should be notified that measures as required to remove a problem will be taken and all parties given the chance to rectify. Failure to assist the rectification will be deemed as being against the spirit of the agreement and therefore the agreement will have to be reagreed. An agreement cannot be held workable in perpetuity.,certainly not to the benefit of one State against another or as an excuse to assume the keeping of peace. Peace which both parties do not attempt equally to uphold would be a breaking of that agreement.How much value would the EU place on freedom fighters travelling from one State to another across an open border which is in reality no border at all
On fishery the UK should grant access to other countries under the understanding that any company breaking the rules will be given a warning that future proven discretions will be punished. An independent country has to protect itself. Other countries should show the respect that the UK has given to them in the using of our waters.
Very interesting article. Thank you Nicolas Véron.
The current spat seems completely unnecessary. Right after the referendum I thought, like a lot of other people, that the logical thing to do, given the border and the majority in NI who voted to Remain, would be to leave NI subject to EU rules. A lot of goods travel between NI and GB, but over water, when it is feasible for electronic customs manifests to be processed.
If Brexit were to turn out well for GB, the people of NI have the right under the Withdrawal Agreement to exit the special arrangement, via their Assembly.
There was some talk about no UK PM being able to create a dividing line between GB and NI, but I think this is grandstanding. The small German exclave of Büsingen is surrounded by Switzerland and for customs purposes part of a union with Switzerland. Nobody seems to think that this pragmatic solution is a betrayal of German sovereignty.
Anyway I am old fashioned and English. It used to be said that an Englishman’s word is his bond. I don’t want the PM messing that up.
But perhaps he won’t. My theory is that the threat to override the Withdrawal Agreement is just a negotiating ploy. I hope so.
The problem is that those who lost the referendum vote have spent three and a half years trying to undermine the UK negotiating position. This has tilted the balance of the negotiations strongly in the EU’s favour and Boris is now trying to even things up at the last minute.
Article 50 was invoked comparatively quickly after the 2016 Referendum. From that point onwards the field was open for the Brexiteers to complete whatever kind of Brexit they wished. The problem was never about whether pro-Remainers accepted or did not accept Brexit, they had become irrelevant and were treated as such by the media.
The problem has always been that Brexiteers have never had one single idea about what Brexit meant, indeed many had entirely contradictory or totally unrealistic ideas about what it meant and the only common denominator was that most were not prepared to sit down with each other and compromise on what it meant. Add to that the media allowed Nigel Farage and the ERG to act throughout as ever-present arbiters of what constituted the true faith. For this reason ever since the referendum there has been an irresistible trajectory towards ever more extreme, fundamentalist positions which have nothing at all to do with what is best for the British people.
Not really. The Remainers were pushing for a second referendum and the EU did everything it could to support that. EU spokesman have admitted as much.
Just one example…. “EU may refuse Brexit extension without general election or second referendum”
David Sassoli, the president of the European Parliament, suggested the conditions in Brussels on Wednesday night after Tuesday talks with John Bercow in London
If you were expecting those who believe strongly in UK membership of the EU to disappear into thin air the morning after the Leave side won the referendum then you have a strange idea of democracy and freedom of opinion. People who wanted to leave the European Community following the Yes vote to remain inside the EC in the 1970s didnt give up their beliefs and immediately began campaigning again to reverse the result. Of course once it became clear that left to their own devices the Tory Brexiteers would never agree amongst themselves what they wanted of course people began to raise the possibility of a second referendum. But the media continued to sideline Remainer opinion. It is also hardly surprising that the EU Commission did not want to continually extend the transition period forever unless there was good reason to.
I was not by any means an extreme Remainer, I though we had a perfect balance prior to the referendum – in the EU but not in the Euro or the Schengen Zone. I still believe we should have voted to Remain and would have accepted a leave result which took account of the fact that almost half the population wanted to remain. But the manner in which my opinion was deemed to be irrelevant and in which Remainer opinion was not given some consideration in the final outcome of the negotiations means that I feel entirely alienated and I cannot see that changing anytime soon.
“But the manner in which my opinion was deemed to be irrelevant and in which Remainer opinion was not given some consideration in the final outcome … ” The problem is you cannot belong 48% to the EU. As the EU has made very clear throughout the negotiations, either you are in or you are out. The only possible halfway house was a situation like Norway or Switzerland where you accept large parts of EU law while having no influence over how it is made, and virtually everyone agreed that this wasn’t what Leavers voted for.
“If you were expecting those who believe strongly in UK membership of the EU to disappear into thin air the morning after the Leave side won the referendum then you have a strange idea of democracy and freedom of opinion.” No-one expected Remainers to disappear into thin air. However I think those Remain MPs who voted to have a referendum in the first place (and that was nearly all of them, apart from the SNP and I think Plaid) were obliged to accept the result. It is not democracy if you call a referendum and then won’t accept the result when you don’t like it.
I don’t deny the numerous flaws in the referendum. But the MPs who wanted to overturn it should ask themselves why they supported the referendum in the first place. And it shouldn’t be forgotten that the main parameters of the referendum were decided by a Remain government.
I think the proper thing for Remain MPs to have done would have been to try to think as Brexiteers, work out how best to “Take back control”, and try to make a go of it. I think that’s what many Remain MPs said they would do in the immediate aftermath of the referendum. But this feeling evaporated and we got years of parliamentary deadlock leading to the current situation.
“People who wanted to leave the European Community following the Yes vote to remain inside the EC in the 1970s didn’t give up their beliefs and immediately began campaigning again to reverse the result.”
I don’t believe that they IMMEDIATELY campaigned to reverse the decision, if you have any evidence to the contrary I would be interested to see it. They did start to campaign once the Maastricht Treaty became an issue as they were entitled to do since that was arguably beyond the mandate of the 1975 referendum.
It may be that if the Remainers had accepted the referendum result then we would have had far more successful negotiations with the EU, or maybe not. We will never know. We have been denied that possibility.
The EU has consistently said “no cherry picking” of the SM and that has absolutely nothing to do with disaffected Remainers.. We export 48% of our exports to the EU and they 10% of theirs to us. Contrary to Brexit pre ref claims… The EU holds all the cards other than a Kamakazi policy by the UK to wreck peace in Ireland and its own economy if it dosent get its post Brexit densnds. The equivalent of shooting one foot so that blood splatters on the EU…
Corona will give both sides a chance to hide the economic fallout from a potential no-deal outcome.
Since the referendum, the public in the EU27 has learned that a significant share of the British does not seem to endorse the pan-European idea in a similiar way as at least the core countries do.
My impression is that the rifts between EU and UK have deepend to an extend that I do not know which side would be less disappointed by a no-deal outcome: UK or EU27.
An increasing share of the public at least here in Germany seems to think that a no-deal Brexit could be a healthy reboot for the relationship, and a different Britain might be re-approaching the EU e.g. in 10-20 years down the road.
“An increasing share of the public at least here in Germany seems to think that a no-deal Brexit could be a healthy reboot for the relationship, and a different Britain might be re-approaching the EU e.g. in 10-20 years down the road.”
It won’t happen the subject of the EU referendum has become too toxic for any UK politician to go there for at least a generation.
In any case we cannot yet anticipate what the EU will look like after the economic impact of coronavirus. Remember that the crisis in Greece took a long time to emerge after the 2008 financial crisis. Italy didn’t look too financially secure even before the virus struck.
This is the single big issue that many British do not seem to understand: The EU has many shortcomings including economic ones but is a political peace project that seeks to turn former enemies into partners.
Brexit-Brits don’t want to sign up to this. So maybe hard brexit will be better for both sides.
Being apolitical and reading of the BREXIT events from news sources is a source of great sadness
Im surprised the vote was realized on a 51/49 margin and forwarded
My suggestions for a ballot solution would be to raise the bar on future votes in general to pass accepance of at least 60%. – hence it’s not surprizing that there is so much confusion regarding resolves to this BREXIT overall.
?As a casual observer it leaves an impression that the current position adopted by the UK is weaker in negotiating outside of the Treaty terms fowards in resolve overall as opposed to negotiating within the union.
Dear UK – please come back
The growing pains of the new Europe can be come to terms with and on reasonable agreeable terms to all members
“Im surprised the vote was realized on a 51/49 margin and forwarded” I think you should not be astonished, because almost everyone committed before the referendum to accepting the result.
In any case the actual results were more like 51.89% to 48.11%. If you are going to round out the decimals, it would be more accurately to cite the result as 52/48.
“My suggestions for a ballot solution would be to raise the bar on future votes in general to pass accepance of at least 60%” Part of me would love this because it would mean the SNP had a much bigger mountain to climb if they wanted to win an independence referendum. But I think that would be unfair. I think it would be intolerable if 48% of the electorate were allowed to trap 52% in the EU indefinitely. The suggestion I have made several times in this blog is that if there is a narrow win in a referendum for the side which wants to change the status quo, this needs to be confirmed by a second vote 12 months later.
So to take the example of a hypothetical future Scottish independence referendum, my suggestion work like this. If the Unionists won in the first referendum, or if the Nationalists won by 60%-40% or more, that would be that. If the Nationalists won, but with less than 60% of the vote, there would be a second referendum 12 months later. (The 12 months would probably be taken up by love-bombing from South of the border.) The result of that second referendum, however narrow, would then be decisive.
If the Brexit referendum had been run on these lines, I could imagine the Brexiteers might well have won the first round, but narrowly. The EU and Cameron government would then have made an extra effort for the second referendum. If this had worked, well and good, if not the UK would have been more prepared for Brexit.
“If the Brexit referendum had been run on these lines, I could imagine the Brexiteers might well have won the first round, but narrowly. The EU and Cameron government would then have made an extra effort for the second referendum.”
Mr Cameron said there would be “no second referendum” once Britain has voted. “This choice cannot be undone, if we vote to leave then we will leave,” he said.
Cameron obviously thought that your proposal was unworkable. If people really believed that by voting Leave they could squeeze extra concessions from the EU, then the Leave vote would have been considerably higher:- maybe to the extent that there would be no need for a second referendum.
As it is I know someone who voted Leave because he didn’t wish to see Remain win by too big a margin.
“Mr Cameron said there would be “no second referendum” once Britain has voted. ” Yes indeed. And so did virtually all the other Remain politicians. So there couldn’t be one. Maybe I didn’t make it clear enough in my first post, but since the electorate were told again and again before the 2016 referendum that the result of that referendum would be implement, it would have been undemocratic to call a second referendum. In my proposal, the potential second referendum would have been in the model from the beginning.
“Cameron obviously thought that your proposal was unworkable.” To be honest, I don’t really think Cameron thought much about what he was doing anyway. Witness the way the entire UK government collapsed on 24th June 2016, with no plan about what would happen next.
“If people really believed that by voting Leave they could squeeze extra concessions from the EU, then the Leave vote would have been considerably higher:- maybe to the extent that there would be no need for a second referendum.” You put your finger on the major flaw of my proposal. I tried to choose the 60% figure to reduce its effect. If you replace the 60% with a much higher percentage (suppose you had needed 99%-1% in the first referendum to avoid the second) the first referendum would have just become a vote on “Do you want the UK government to try and get a better deal with Brussels”, then for sure Leave would have won big, but it wouldn’t have meant anything. On the other I would have wanted to avoid a decisive Leave victory happening in the first round because 49% wanted to Leave and another 12% wanted the extra negotiation but to remain. My hope would have been that that would be unlikely, because the comparatively high performance of Leave before the referendum would have deterred the 12% from voting Leave, because they would have been worried about being responsible for an actual Leave outcome. So my proposal is not perfect. I think it is however fairly good and would like to see it used similar future referenda, for example if there is to be a second Scottish Independence referendum.
In general the problem with my proposal is that in it there are actually three outcomes, Leave the EU, Remain in the EU (with immediate effect) and Remain in the EU (after renegotiation). Voters will have their own preference order for the three outcomes, and will try to vote accordingly, but sometimes, on the basis of inaccurate information, will muck it up.
“As it is I know someone who voted Leave because he didn’t wish to see Remain win by too big a margin.” Your friend also suffered from the three outcomes problem, with the three outcomes being “Remain (big victory)”, “Remain (narrow victory)” and “Leave”.
This is a general problem with voting. I think the only solution to the three-outcomes problem is a dictatorship, see Arrow’s Theorem blah blah blah.
“I ‘m surprised the vote was realized on a 51/49 margin and forwarded.”
It has something to do with the fact that, in the UK, the Maastricht Treaty and the Lisbon Treaty were each decided on a 0/0 vote margin.