Analysis Paper: The Battle of Brexit

“The highest pivot of virtue is to possess boundless power without abusing it”.

Thomas Babington MacCauley, 1^stBaron MacCauley

Abstract: This brief personal analysis paper examines why it is so hard to agree a Brexit settlement. It considers the challenges through the lens of two issues; the post-Brexit inner-Irish border and the aims and strategy of the European Commission. The analysis concludes by suggesting that Tony Blair’s call for a bespoke deal to keep Britain in the EU is the only way to stop Brexit, but for all the reasons discussed below it is extremely unlikely Britain would or could be offered such a deal.

The Battle of Brexit

Brexit is at its inevitable schwerpunkt when fudge can no longer be fudged, and choices have to be made. Today, British Prime Minister May will lay out five tests for Brexit which will essentially say that Britain’s decision to leave the EU must be respected, frictionless trade with the EU must be maintained, London decides which of the four fundamental EU freedoms (goods, people, services and capital) London will observe, with any disputes to be decided not solely by the European Court of Justice (ECJ).

This week the real Battle of Brexit broke out. On one side is a hard-line, unelected, and effectively unaccountable European Commission committed to its self-appointed political role to drive towards some form of European Federation. On the other side, is a top five world power that is seeking to leave the European Union, not least because of profound unease in many of its quarters about the EU’s attitude to democracy, legitimacy and the sovereign will of the people. In the middle is a people appalled by the divisions within its leading political class, and increasingly irritated by the hard-line stance of Brussels. The Battle of Brexit is also a battle fought through proxies, but it is nevertheless an existential battle not only about who rules ‘Europe’, but the future of Europe.

The publication this week of TF50 (2018) 33 or European Commission Draft Withdrawal Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Agreement is far more than a dry technical, bureaucratic document. Rather, it firmly establishes the strategic and political battle-lines between a European Commission that is playing very hard-ball indeed over Brexit, and a British Government that has thus far avoided setting out anything that might be called a negotiating position. This is because the May Government is unable to agree one, and she is too weak to impose one. Born of a mix of ideological fundamentalism and frustration the Draft Agreement is thus deliberately designed to put Theresa May in a position where she has no option other than to say what she wants. There are two issues upon which this analysis will focus, one of which demonstrates the lack of any political will to agree a settlement, and the other explains why; the Brexit Irish Question and the aims and strategy of the European Commission.

The Irish Tail Wagging the British Dog?

In the 1980s I spent time in Northern Ireland and I am acutely sensitive to Britain’s tarnished, at times appalling history on the island of Ireland. My respect for Ireland and the Irish people runs deep, and I remain firm in my belief that should the majority of people in the north of Ireland ever vote to become part of the Republic I would honour such a decision. As someone intelligent said to me recently, “Ireland is like an innocent passer-by walking down a street in a storm who suddenly gets drenched by a bloody big, poorly-driven lorry driving through a puddle of its own making”.

What is fast becoming known as the Irish Question amidst calls for a ‘common regulatory area’ on the island of Ireland, perhaps shine the best light on the politics of the Draft Agreement. As such it reflects as much Brussels’ legitimate frustration with a hitherto hopeless London, as it implies any power grab on a part of the United Kingdom. Yes, Brexit is complicated, but it is being made far more complicated by Theresa May’s lack of leadership, a Cabinet so divided they probably could not even agree on the time of day when it comes to Brexit, and a negotiating team most of whom give the strong impression they would prefer to be batting for the other side. When historians come to write about the sordid tale that is Brexit they will doubtless conclude that London conducted perhaps the worst set of negotiations in Britain’s long history.

With the Battle of Brexit now turning nasty some accuse the Commission of diverging significantly from at least the spirit of the December Joint Agreement, which agreed the overall cost to Britain of its pending departure from the EU. Others suggest the Commission even wants to ‘annex’ Northern Ireland. In fact, the text of the Joint Agreement is pretty clear. “In the absence [my italics] of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 [Belfast] Agreement. A second sentence states that, “In all circumstances, the United Kingdom [not the EU] will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market”. In other words, only if the UK fails to come up with a solution to the Irish Question would Northern Ireland remain fully aligned with existing EU obligations. It is hard not to conclude that in her pre-Christmas December desperation to complete so-called Phase One negotiations, and agree the ‘divorce bill’, Theresa May simply gave away too much. The Draft Agreement simply translates that concession into legalese.

However, as with all issues Northern Ireland there is a wider security context against which Brexit must be considered. The security and stability of Northern Ireland, and in particular the April 1998 Belfast or Good Friday Agreement (GFA), has been the cornerstone of the peace process. Whilst the EU was not a signatory to the GFA the political and economic context provided by the Union undoubtedly played a role in reducing the logic of Sinn Fein/IRA’s armed struggle against Britain, even if the critical moment in the peace process was not 1998, but 911. After the attacks by al Qaeda on the US, and Tony Blair’s commitment of immediate British support for the Bush administration in the Global War on Terror, savvy Republican political leaders such as Gerry Adams and Martin McGuinness quickly realised they they would lose the support of their American backers if they continued to attack British troops fighting alongside their American counterparts in Afghanistan against Osama bin Laden.

The Commission case, and indeed that of the Varadkar government in Dublin, rests upon an assumption that Northern Ireland is not really part of the United Kingdom. It is. The majority of the people of Northern Ireland have not as yet indicated a desire to leave the United Kingdom and become part of the Republic. In other words Northern Ireland is, and will remain for the foreseeable future, part of the United Kingdom, whatever the necessary fudge of the Belfast Agreement. Theresa May was thus correct to say this week in Parliament that no British prime minister could ever accept an agreement that threatens the constitutional integrity of the United Kingdom, just as she is correct to assert that no hard border need be re-imposed on the island of Ireland.

Getting Over the Border

So, what is the answer to the Irish Question? Over many years between 1984 and 2007 I either lived or stayed in Switzerland.  In 2011 Switzerland joined the Schengen Zone and in practice accepted the ‘acquis’ of a borderless European Union. However, for many years prior to 2011 there were many border crossings between France and Switzerland that were rarely ever manned. In other words, the border between Switzerland and France was a ‘fudge’, albeit a successful fudge. It is precisely such a fudge that Britain and the EU could ‘craft’ if there was the political will so to do. It is precisely the lack of such will on the part of Brussels that is preventing such a fudge.

Let me be specific. I have just finished reading a report entitled Smart Border 2.0; avoiding a Hard Border on the Island of Ireland for Customs Control and the Free Movement of Persons. The paper was published in November 2017 and written by Leo Karlsson, the former Director of the World Customs Organisation, having been commissioned by the European Parliament.

Forgive me for quoting this report at length, but it is important. The paper states: “This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, provides background on cross-border movement and trade between Northern Ireland and Ireland and identifies international standards and best practices and technologies that can be used to avoid a ‘hard’ border as well as case studies that provide insights into creating a smooth border experience. The technical solution provided is based on innovative approaches with a focus on cooperation, best practices and technology that is independent of any political agreements on the UK’s exit from the EU, and offers a template for future UK-EU border relationships”.

The paper goes on: “There have been significant developments around the world in creating ‘smart borders’ that bring together international standards and best practices and new technologies to create low-friction borders that support that fast and secure movement of persons and goods. Standards and best practices such as domestic and cross-border coordinated border management as well as trusted trader and trusted traveller programs can significantly reduce compliance requirements and make borders almost friction free. Customs and other border control practices that keep the border open, such as release before clearance, deferred duty payments and clearance away from the border, also help keep the border free of traffic and speed up or even remove the need for processing. Technologies such as automatic number plate recognition, enhanced driver's licenses, bar-code scanning and the use of smartphone apps can also have a significant impact by reducing paperwork and allowing pre- or on-arrival release, which can reduce or even eliminate the need to stop or undergo checks. Many of these measures have been introduced at borders across the world.

At both the Norway-Sweden border and the Canada-US border, low friction borders have been created through a focus on sharing of both data and facilities, the creation of an electronic environment for trade and travel and the use of modern technologies. Both Australia and New Zealand have also focused on utilising technology, in particular bio-metrics, to speed-up the movement of citizens between their respective countries. In developing a solution for the Irish border, there is an opportunity to develop a friction free border building on international standards and best practices, technology and insights from other jurisdictions”.

In other words, the only real barriers to solving the inner-Ireland border questions are the willingness to enact a fudge, and the time it would take to install the Karlsson system. And, of course, the political will so to do.

The Aims and Strategy of the Commission

This brings me to the second part of this analysis; why the European Commission, claiming to act on behalf of the whole of the EU, is determined to prevent the ‘pragmatic’ solution Michel Barnier repeatedly refers to? To answer that question one must analyse the Brexit aims and strategy of the Commission. The simple answer to the question is that the Commission is simply not interested in a working solution to Brexit because such a solution could imply that other member-states might make a similar choice if the cost is not too great.

Indeed, for the Commission the Brexit negotiations are not really about the British. Rather, it is a struggle within the EU over precedent, primacy, pre-eminence and power between the European Council, the European Commission and the European Parliament. The aim of the Commission is to drive Europeans towards some form of European Federation. During my time as Senior Fellow at the EU Institute for Security Studies when I visited the Commission in Brussels I was struck often by the extent to which those who occupy the New Berlaymont see themselves as political Jesuits; committed to not only uphold the True Faith, but enforce it.

As with all such political institutions the primary aim is to render ever more power unto itself and, in so doing, eradicate any danger of dissent. One aspect of that aim is to eradicate democracy from the high politics of the EU in the form of national referenda, and thus drive towards ‘ever closer union’ as defined (and initiated) by the Commission. As such Brexit represents an existential threat to the True Faith of Euro-Federalism. To protect its mission the Commission must either over-turn the Brexit vote (preferred Commission option), or by making the cost of Brexit so high, deter any other Member-State from ever again contemplating withdrawal.

The Commission claims it is accountable to the European Council and the European Parliament. In practice, as ‘the only body paid to think European’ the powers of the Commission go far beyond the apparent limits of its competences. The 2009 Treaty of Lisbon imbued the Commission with the ability to initiate policy, and in so doing enabled it to occupy the powerful legal and political space between an international treaty and a domestic constitution that is the Lisbon Treaty. The Commission has also mastered far more effectively than any Member-State the treaty-constitutional uplands of the Union. This has enabled the Commission to often and effectively manipulate the Council, particularly if it aligns itself with an increasingly dominant Germany, and to use the European Parliament as a rubber-stamping agency for the Commission’s vision of ‘ever closer Union’.

Naturally, ‘ever more Europe’ means ever more Commission, in particular the permanent secretariat now under the leadership of the new German Secretary-General and ultra-hard line Euro-federalist Martin Selmayr, who last week was mysteriously, and somewhat suspiciously, promoted from being Juncker’s chef de cabinet to being the Commissions top permanent civil servant. Even the European Parliament’s transparency ‘czar’ has expressed concerns about the manner of Selmayr’s promotion.

The Commission’s Brexit strategy is thus clear; present an utterly inflexible negotiating position as ‘reasonable’, and block off any ‘escape’ route that the British Government might seek via fudge that might lead to something like an equitable, working future relationship.

Analysis versus Instinct

Even though I have seen Brussels close-up I still decided to campaign for Remain during the Brexit referendum, even though it was against my better instinct. Indeed, it was only after an exhaustive analysis of the EU and Britain’s relationship and place within it that I made my final decision. On balance, I assumed, given the growing geopolitical threats faced by states to the east and south of Europe, and in spite of my deep and abiding concerns about the dangerous retreat from meaningful democracy in the EU, I came out for Remain. I saw myself as a Big Picture Remainer, someone who had carefully considered where best to exercise Britain still-considerable influence and power within the wider strategic context of a Europe under growing threat.  And, in spite of my concerns about the EU I accepted the idea that the EU still had a vital role to play in preserving peace within Europe.

Even with the June 2016 vote to leave I still assumed that the subsequent Brexit negotiations whilst hard would be carried out in a manner respectful of the legitimate democratic choice the British people had made. How wrong I was. The outcome of this disaster is now becoming clear: Britain will be much weakened by Brexit, and the EU, rather than being the free associations of democracies in which I once believed deeply, has been revealed as a vengeful empire run by an elite ‘monastic’ bureaucracy in which the only place for democracy and the people is to vote for the powerless and the meaningless.

Hard Sovereignty versus Soft Sovereignty

To conclude, the Battle of Brexit is not about trade, whatever the Labour Party or the Liberal Democrats like to pretend. Brexit is about where power resides and who governs us. In which case it is a struggle for all Europeans and of which all Europeans need to be aware.

This is because Brexit is not about now, it is about who really has the power to govern Europeans ten, twenty, thirty years hence, and whether the EU really is a free association of sovereign, democratic states, or a federation effectively ruled by an elite cabal. In other words, these are questions that whilst they can be delayed cannot be fudged indefinitely if Britain, and the rest of Europe, are not to slide into some form of soft authoritarianism epitomised by the likes of Barnier and Selmayr. Sadly, Theresa May’s inability to either understand strategy or apply big power means she is incapable of anything but fudge.

That is why with the Draft Agreement the Commission is in effect offering the British people a Hobson’s Choice: hard Brexit and effectively lose Northern Ireland, or a Brexit so soft that Britain does not leave the EU at all. Rather, it becomes to all intents and purposes a colony. Or, to put it at its most romantic (and here is the irony) the first province of the new European Federation.

As a Remain-backing Briton I cannot, nor will I ever accept such a ‘choice’. Read carefully the speeches this week made by Sir John Major and Tony Blair and my sense is neither do they. Rather, they remain hopeful a) EU Member-States can again re-establish their supremacy in the EU; b) the Member-States can do so without the former Franco-German Axis morphing ever more into German domination; and c) Britain can re-exert more influence over the EU, and indeed the French and Germans within the EU than at any time since Britain joined in 1973. Give me the hope of realising such a vision and I would actively campaign for it.

Ironically, Blair’s speech this week in Brussels actually mirrored what I said in Berlin a couple of weeks ago (naturally, I was first); the only way to stop Brexit is to offer the British an entirely new deal that would enable the British people to vote again on Brexit, albeit on a different question; will you accept British membership of a reformed EU with a special status for Britain?

Sadly, I think it is too late for that. For all the reasons I outline above the denizens of the New Berlaymont would rather die fighting in the trenches of Euro-federalism than accept a compromise that would, to all intents and purposes, end their dream of just such a federated Europe. Moreover, to convince the British people to change their minds would take far more than the kind of dupe used to make the French, Dutch and Irish people ‘change their minds’ over the then EU Constitutional Treaty. The failure of the British Government’s Project Fear prior to the June 2016 Brexit referendum demonstrates all too clearly a people that are not easily fobbed off.

Therefore, given the appalling choice available to me, and with genuine regret, if the worst of all post-Brexit worlds came to the worst I would prefer Britain break cleanly with the EU fully accepting the inevitable cost to Britain’s economy, if not to Britain’s democracy. Resistance is never futile, and the Commission needs to understand that it must accept the legitimacy of Brexit, just as much as London, and the British people, must accept the cost of it.

There is one final thought I wish to impart in this personal analysis. There are those on the Continent who somehow believe they could countenance the attack on the integrity of the United Kingdom that the Commission is mounting and yet seem to believe that such an attack would have no implications for the support of Britain in the defence of their own countries through NATO. Should the Commission succeed in its efforts to weaken the UK over Brexit the British people would have little interest in defending those in whose name such attack was mounted. And, I for one, would be only too happy to help to make that clear.

Maybe it is time for some grown-ups to intervene?

Julian Lindley-French