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The stunning news about the Trumps contracting Covid-19 has pre-empted many other stories. But let’s not neglect an important Brexit development yesterday: that of the EU formally launching legal action against the UK for not removing the offensive sections of its Internal Market bill, which has passed the House but has not yet been approved by Lords. Recall that the some Government ministers have admitted that the Internal Market bill violated the Withdrawal Agreement, signed by the Johnson government. As we explained mid-September:
It is hard to fathom how the EU and UK can extricate themselves from the Brexit mess that Boris Johnson has engineered, particularly given that EU leaders had lots of antipathy for Johnson even before he became Prime Minister. They seem more inclined to throw him an anchor rather than a bone.
For those of you who tuned out of this melodrama and missed the latest episode, the land border in Ireland was the Achilles heel of Brexit. The Good Friday Agreement is a tricky set of compromises and fudges that has been a tremendous success in practice. No one wants to touch this third rail except the ideologues in power in Great Britain. Even US Congresscritters have cleared their throats and said the UK can kiss its US trade deal goodbye if it messes with the GFA.
Yet Boris Johnson is proceeding to advance a bill through Parliament that would negate commitments he agreed to in the Withdrawal Agreement, the very same deal he touted as a great win for the UK when he pushed it through shortly after moving into No. 10. Johnson is blowing up the Ireland compromise he’d agreed to, of having Northern Ireland subject to EU restrictions on state aid, which for businesses that operated in Northern Ireland and Great Britain, would wind up applying to all of their UK activities. Johnson also wants to nix the Exit Declarations that Northern Ireland businesses would have to file for shipments into Great Britain. Johnson, when called out on the issue at the time of the vote on the Withdrawal Agreement, handwaved them away as “light touch checks“.The Government admitted then it had no idea how much compliance would cost Northern Ireland businesses.
And in blowing up that arrangement, Johnson risks blowing up getting any sort of EU trade deal by year end. We are back to a Brexit Groundhog Day tape loop, a digitally enhanced version of the “no deal Brexit” scenario. And there has been so much talk of “hard Brexit” and crash-outs that the general public has become inured to what it might mean. Admittedly, with Covid having already killed air travel, that’s one sector out of the Brexit line of fire. But even with all of the extra prep time, there’s plenty of UK downside. Goldman not only argues that the hit would be much larger than for Covid, but that it would also be possible to identify the magnitude of botched Brexit damage.
Mind you, EU legal action against states is a far more measured affair than, say, the US Federal government suing states. The EU had cleared its throat and said the UK needed to remove the offending sections from the Internal Markets bill by the end of September. Since that hasn’t happened, the European Commission, in its capacity as “the guardian of the treaties,” sent a letter to the UK asking for it to ‘splain itself. The key bits of President van der Leyen’s short statement:
As you know, we had invited our British friends to remove the problematic parts of their draft Internal Market Bill by the end of September.
This draft Bill is – by its very nature – a breach of the obligation of good faith laid down in the Withdrawal Agreement (Article 5).
Moreover, if adopted as is, it will be in full contradiction to the Protocol on Ireland / Northern Ireland.
The deadline lapsed yesterday.
The problematic provisions have not been removed.
Therefore, this morning, the Commission has decided to send a letter of formal notice to the UK government.
This is the first step in an infringement procedure.
The letter invites the UK government to send its observations within a month.
Now some of you may be saying, “This is silly. The UK will be done with the transition period in a few months and it can tell the EU to sod off.” That’s not correct.
The UK and EU had agreed to a dispute resolution mechanism for disputes under the Withdrawal Agreement, although that isn’t the route the EU chose to pursue.
Instead, the EU availed itself of the fact that the UK agreed that the European Court of Justice retains jurisdiction over the Withdrawal Agreement during the Transition Period. And as President von der Leyen set forth, the EU’s position is that the UK breached what in an US commercial contract would be the “good faith and fair dealing” requirement that is implicit in all contracts…and is explicit in the Withdrawal Agreement.
And if you read Article 87 of the Withdrawal Agreement, the Commission can file a case against the UK for a breach of the Withdrawal Agreement for up to four years after the end of the Transition Period, and the ECJ has jurisdiction over those cases:
If the European Commission considers that the United Kingdom has failed to fulfil an obligation under the Treaties or under Part Four of this Agreement before the end of the transition period, the European Commission may, within 4 years after the end of the transition period, bring the matter before the Court of Justice of the European Union in accordance with the requirements laid down in Article 258 TFEU or the second subparagraph of Article 108(2) TFEU, as the case may be. The Court of Justice of the European Union shall have jurisdiction over such cases.
Article 89 says UK courts will enforce rulings under Articles 86 and 87.
Richard North believes the EU is likely to launch other actions:
If the Bill becomes law, the UK could be in breach of the substantive provisions of the Protocol: Article 5 (3) & (4) and Article 10 on custom legislation and State aid, including amongst other things, the direct effect of the Withdrawal Agreement (Article 4). This, presumably could be subject of a further action, invoking the dispute procedure in the Agreement.
And don’t assume this will get wound up before December 31 absent a massive UK climbdown:
22. So the EU, the other signatory to the deal, launched a legal action to stop us breaking it
23. We now have 3 months to resolve this case so we can get a vital trade agreement
24. An Argentinian / EU trade dispute has been ongoing since 2012. That's a bit more than 3 months
— Russ (@RussInCheshire) October 1, 2020
With all this in motion, no wonder the other omens are not looking good:
Am told Michel Barnier will not be briefing EU leaders about #Brexit at their Brussels summit tomorrow. European Commission Pres will hold the Briefing while M Barnier meets UK chief negotiator David Frost. No Barnier presser planned – v unusual after negotiating weeks. Hmmmm..
— Katya Adler (@BBCkatyaadler) October 1, 2020
Even before the Internal Market bill gambit, we had observed that the normally-fabulously-uncommitted-to-anything-other-than-himself Johnson had so dug himself in on a super-hard Brexit that it was difficult to see how he’d back himself out of that corner if he found it necessary. And a short timeframe makes that even more difficult.
Chris Grey, in his new Brexit Blog post, points out that the Leave campaign and later the Tory government had promised, in effect, that the UK would remain in the Single Market, even though that was revealed under Theresa May to be cakeism:
It beggars belief that the government should now be contemplating, not as its worst scenario but as its best and indeed preferred scenario, the thinnest of trade arrangements with the EU….Britain has been driven by the implacable extremism of the Brexit Ultras to a situation where the only future relationship options are distance or dislocation.
Grey comes out more or less where we do, that the Government’s choice to play hardball for domestic consumption, compounded by the Internal Market bill show of bad faith, has made it well nigh impossible to salvage the negotiation, even it the Government was merely posturing:
The IMB now goes to the House of Lords, where no doubt it will be mauled, but as trailed in my last two posts the government has delayed the timetable for this. Taken together with the terms of the EU’s legal action, this means that there is a tiny window in which the trade talks can proceed without the Bill actually becoming law. That creates a theoretical possibility that the illegal clauses might be dropped in the light of a deal being done, according to Simon Coveney, Ireland’s Minister for Foreign Affairs, and others. Thus by the middle of October, conceivably, there might be a trade deal and an end to the threatened international law breach.
But massive damage to trust has already been done, with the result that the issue of enforcement for the governance mechanism for any trade deal has now taken centre stage in the future terms negotiations. The obvious concern is that the Johnson will once again sign a rushed deal with implementation details to be filled out later, perhaps especially tempting given the ongoing coronavirus crisis, only to backtrack later when it comes to putting what was agreed into practice as has happened with the IMB. Shamefully, thanks to the behaviour of Johnson’s government, our country is no longer trusted to behave honestly.
Johnson may get his comeuppance, but too late to relieve the negotiation deadlock:
Johnson will be gone in the spring.
"The Tory party is far from being in revolt. But a deep disquiet is brewing. Many MPs feel that while they chose Johnson to lead them, they're now being ruled by his unaccountable gang. He's also proven far less able in office than many hoped“
— Brexit Bin ?? #NotMyBrexit (@BrexitBin) October 1, 2020
Meanwhile, wishful thinking abounds. Via Tony Connelly in RTE:
Meanwhile, Tánaiste Leo Varadkar has said he expects Britain and the European Union to clinch a tariff-free and quota-free trade deal, in an interview published by online news site The Currency.
“I still think there will be a deal. It will be no quotas, no tariffs, some form of minimum standards and control on state aid and fishing,” Mr Varadkar was quoted as saying.
Erm, while in theory anything is possible, even this sort of bare-bones pact looks to have lottery-ticket odds. The EU is not relenting on state aid. They are not letting the UK undercut the EU. And the UK has made so much noise about this issue that it’s hard to see how they could retreat.
And while a compromise would seem to be far more likely on fish, enforcement of any resource-sharing deal would be nightmarishly complicated and costly.
And as Gertrude Stein said of Oakland, “There’s no there there.” While an agreement waiving tariffs and quotas is clearly better than none, it does not prevent a hard customs border. And I’m not sure about the no quotas part being possible, since those would presumably still apply through EU deals with other third countries like South Korea. In addition, “bare minimum” deals in key sectors almost certainly require more bells and whistles than “no tariffs, no quotas”:
Time is running out to secure a post-Brexit trade deal or a “bare minimum” agreement on drugs so as to avoid significant delays to supplies to the UK, MPs have been warned https://t.co/SSkPZZp6de
— The BMJ (@bmj_latest) October 2, 2020
And whaddabout financial services?
Needless to say, we expected these talks to end badly. There was never any bargaining overlap between the Leave position and the steps on Barnier’s ladder. But as I so often say, it would be better if I were wrong.
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Just a point on the quote from Varadkar – I doubt that he really believes that, for a while now he’s been playing the ‘good cop’ to Simon Coveney’s ‘bad cop’ in terms of public utterances. So he is really just leaving the door open to a UK climbdown, not indulging in wishful thinking.
From what I can work out, the Irish government is already pretty much convinced that any type of deal is unlikely, they are trying very hard to get the economy ready for it, but with Covid chaos and uncertainty this has proven very difficult. There are pretty much daily statements out there telling various business sectors to get ready, and there is no doubt a lot of work going on under the surface, but I doubt anyone really knows what is needed to be done, especially as supply chains between the UK and Ireland are already under huge Covid strain (I keep hearing complaints from people in the construction industry and in retailing that they just can’t get firm dates on any orders from the UK). But some adjustments have been made – one thing I’ve noticed from my ‘crane watching’ in Dublin is that lots of construction sites have switched from using pre-cast concrete to in-situ concrete – most pre-cast used in the Republic comes from Northern Ireland and Britain.
On the subject of cross-border movements, its been noticed in Ireland that the most intense rural Covid hotspots are along the border areas. These simply don’t match with official Northern Ireland figures, which has led to deep suspicion in Ireland that the UK is being less than honest with its official infection figures. There are already restrictions on travel between Donegal and Derry because of a major outbreak in very rural county Donegal.
On the EU front, its also quite apparent that the main EU leaders are not focusing on Brexit – the focus is now far more on troubles on the Greek/Turkey border and Nord See 2, along of course with covid. I think they are simply sick to death of it, and have no trust whatever in Johnson. I don’t see there as being the political will to make compromises, as this would involve the Germans and Dutch trying to strong-arm the French, Spanish and Portuguese over fishing rights.
From my occasional reading of the UK media, nobody seems to be paying much attention at all to what a no-deal Brexit would mean. People have been listening to it for too long and have tuned out entirely. I think there could be a horrible shock occurring simply because even basic precautions aren’t been taken. For one thing, panic shopping (not just consumers, industry too), could make a bad situation much worse.
Covid-19 has made Brexit news disappear from Spanish outlets. The bill is essentially no news in Spain and as you say the focus is on Turkey or Belorussia or whatever except Brexit. I agree that this looks very much as if the willing to negotiate with the UK has faded. I don’t know if there is any remote possibility to take this issue to a kind of permanent extension of the current status or if this will finally end this year with no-deal Brexit. For instance using Covid as a reason to extend and pretend.
Although its officially been ruled out, I think that if there is some sort of attempt to prevent a no-deal disaster, it will be an extend and pretend agreement under the cover of the extraordinary situation caused by Covid. While the Ultras would no doubt scream, I think there seems to be a rising sense of panic about it among those few Tories who still have some sort of pragmatism – under pressure from business they might swallow their pride over it.
If you read the British media, it is all ‘operation fear’ and EU sabre rattling. Nothing to see here, move along please.
Could it be possible that a bill that has passed the House, would be considered just Johnson’s “posturing” by the counterparties? If anything, the EU might expect even more breaches of the WA. He will probably use the ECJ ruling as an argument for a hard brexit. Won’t he?
The EU hasn’t even filed a case. The UK has a month to respond to the EU’s letter. Then there’s another round if the EU isn’t satisfied. Richard North’s summary:
http://eureferendum.com/blogview.aspx?blogno=87748
So this would all come to a head after the Transition Period was over.
The only solution that I can see is for the Lords to stomp their polite foot down but hard on this piece of legislation. Boris may rail against the Lords for this but even he would know that they would have saved his bacon. The US and the EU would be happy about that development but unfortunately trust has been broken for good as far as the UK is concerned. They are now officially agreement-incapable and will pay a heavy price for this. I have no idea why Boris even tried this stunt in the first place. Maybe when he was in hospital with Coronavirus, his brains got fried or something.
Not going to happen. The Commons can, after a little ping-ponging, use the Parliament Act to neuter the Lords. Johnson can’t use the rejection in the Lords as a political dog-ate-my-Bill excuse, if he didn’t progress using the Parliament Act it would have his hands all over it.
Thanks Clive. Well there goes that idea down the drain. He really has boxed himself in now, hasn’t he?
On the state aid, I heard one thing. The EU said “we’ll accept the state-aid clause you have in your Japan FTA”.
They got no answer so far.
Can’t find the link though, was a few days ago.
The FT outlines the restrictions agreed between the UK and Japan. I think the EU did make that offer, but I can’t find a link either – I’m not sure if it was a serious one or more in jest by someone like Barnier.
There is option value in making treaties with fingers crossed, which is precisely why this is not considered acceptable behavior. A better question would be, why would anyone enter into an agreement with a country that has explicitly signaled it will breach it whenever convenient or expedient? Any flexibility the EU might have entertained on the state aid enforcement provisions will have evaporated, even if the Lords scupper the bill.
It really is extraordinary for a modern country to do this. Its the sort of thing that perhaps enlists a bit of a shrug from the average person on the street, but within diplomatic/political circles this really is the equivalent of taking a dump on the dinner table in front of guests. Even Trump has mostly been held back from overtly breaking Obama era agreements (as opposed to undermining them). And the US of course is perhaps uniquely powerful enough to break norms without direct consequences. The UK certainly is not.
I really wonder what the long term consequences of this are for the UK and the Tories in particular. This type of thing gets remembered and there is usually some type of long term retaliation, just as a reminder to everyone that you can’t get away with it.
In any dispute subject to a legal hearing there is always a respondent for every claimant (or the legal version of “there’s two sides to every story”).
The U.K. government will advance an argument roughly along this sort of line https://www.politeia.co.uk/its-the-eu-not-the-uk-which-is-arguably-breaching-its-legal-obligations-under-the-withdrawal-agreement-by-professor-david-collins/ (or some other similarly lawyerly nonsense).
The CJEU will promptly find in the Commission’s favour (I don’t know why they’ll even bother reviewing the matter, they might as well spend week drinking coffee and eating biscuits) — few outside the EU’s echo chamber believe the CJEU is anything but the Commission’s bench of petting-zoo justices.
At which point the U.K. government will simply declare, like the German Constitutional Court did in the ECB bond buying judgement, that the Member States (or ex-Member States) are masters of the Treaties and that it is striking down the CJEU’s claims to superiority.
None of this will break any new legal ground. There’s already precedent as I’ve outlined.
I’ve searched through as much international media as time and language skills allow in an effort to verify any such notions of how the civilised world will watch aghast at what terribly awful rotten no good very bad reprobates the U.K. government are. No-one cares in the least. The EU being hardly seen as the shining city upon a hill in the so-called international community. Many have bones to pick and axes to grind with the EU themselves.
Err, not really.
The WA explicitly says ECJ has jurisdiction on this (see below), and the UK signed to it.
So if the UK says tough luck, they would really saying they are repudiating the WA.
The UK signed up to something. If you’re saying “so what?”, well, yeah, I guess, you can.
Just don’t expect the UK not to reap consequences sooner or later. And saying “but the EU does it too” doesn’t make any difference. As I wrote before, the diplomacy works on a combination of pacta and might. The former towards equal or a stronger (with a pinch of hope), the latter toward weaker unless one feels the former works better in long term. The UK vis a vis the EU is not even an equal partner (Germany vis a vis the rest of the EU would not be, never mind the UK).
Article 86 (part of):
1. The Court of Justice of the European Union shall continue to have jurisdiction in any proceedings brought by or against the United Kingdom before the end of the transition period. Such jurisdiction shall apply to all stages of proceedings, including appeal proceedings before the Court of Justice and proceedings before the General Court where the case is referred back to the General Court.
Article 89:
1. Judgments and orders of the Court of Justice of the European Union handed down before the end of the transition period, as well as such judgments and orders handed down after the end of the transition period in proceedings referred to in Articles 86 and 87, shall have binding force in their entirety on and in the United Kingdom.
2. If, in a judgment referred to in paragraph 1, the Court of Justice of the European Union finds that the United Kingdom has failed to fulfil an obligation under the Treaties or this Agreement, the United Kingdom shall take the necessary measures to comply with that judgment.
3. Articles 280 and 299 TFEU shall apply in the United Kingdom in respect of the enforcement of the judgments and orders of the Court of Justice of the European Union referred to in paragraph 1 of this Article.
You can’t use an argument about what’s in a treaty to rebut a counterargument that a sovereign state is, as the UK government is advancing, the ultimate arbiter of what a treaty means or doesn’t mean.
I’m not personally making any attribution of merit, moral equivalence or even whether the UK government is being a nice guy or not. That’s the court of public opinion’s job.
But the EU as a superior legal entity is a supranational Tinkerbell. So long as everyone believes in it, it exists. The UK government is taking a position where, having left the EU, it (the CJEU’s superiority) is no longer A Thing. If that’s what the UK government thinks, that’s what the reality is, at least as far as the UK government is concerned.
The EU will obviously belong to the opposite school of thought. But apart from sulking, legally, it’s got nothing.
As to whether the UK government is right or wrong, behaving well or abominably, and, if it is a government behaving badly, what the repercussions of that are, that is up to the international community. But there’s no evidence whatsoever to support any notion that there’s a whole world of countries out there (outside of the EU Member States, anyway) who are sitting there clutching their pearls and horrified at how dreadful it all is. Rather, given the history of the EU’s legal interactions with other countries over the years (and this is where pots calling kettles black does come into it), you can infer the exact opposite.
You can apply your argument to any court or any agreement, anywhere, anytime. The ECJ has jurisdiction over this because the UK has agreed that it has jurisdiction, in writing, in an agreement with the status of a Treaty, end of. No court, including any UK court, would allow a government to refuse jurisdiction in this manner.
Actually, there is mountains of evidence. The US, from Trump to Congress to the Senate, has strongly expressed its opposition. If you think the US doesn’t count, fine, just don’t act surprised when the UK can’t get a trade deal done. And if you think that the major Asian countries or the ex colonies haven’t noticed whats going on and are not busy working out how to use it to their own advantage, then you don’t know how those countries operate.
Yes, the effect of Articles 86, 87, and 89 is strongly analogous to the bog standard provision in any competently-drafted US commercial contract stipulating which state’s law governs the agreement. Congress is full of lawyers. They will get how utterly intransigent the UK is being. this isn’t just a matter of Ireland cultivating Congress members. The UK has no moral or practical ground on which to stand here.
Yes, so your argument is “We signed a treaty, so what?”
I’m not claiming the UK can’t do it, it clearly can. But it has to deal with consequences.
And, if you think that the people outside of the EU don’t take a notice of the UK behaviour, I suspect you might be in for a surprise later on. The fact that they don’t comment on it publicly – of course they would not. There’s no value for them in it at the moment. And that’s regardless of what they think of the EU.
As an aside, the _whole_ legal system, international or domestic is a Tinkerbell, which exists only as long as a substantial majority of the people it claims to affect believe it does affect them. There’s not enough policemen to enforce the law unless almost everyone has some sort of policeman in him/herself (and, TBH, most of the judical systems even reconigse it, as in a law not enforced for long enough is deemed null and void).
So claiming the international laws/treaties are some special Tinkerbell compared to domestic law/contracts is fairly misleading.
You’d think that conservatives (with the small c) would be the first people to realise this and support it, because their whole world rests on it. Which just tells you how far Johnson and Cummings are from a lot of Tories, whether the Tories want to see it or not.
No-one is sadder than I to see the demise of the Rules Based International Order. I can’t pinpoint when, exactly, it entered a terminal decline — I’d put it at around 2000 to 2005-ish. The 2003 invasion of Iraq was definitely a tipping point but it wasn’t the only event.
Once countries — and I mean all countries, they’re all guilty to some extent — stopped looking at the Rules Based International Order as an ideal which they must uphold but instead started looking at it as system they could game for their own national advantage, the end was inevitable. And there’s plenty of blame to go round. Germany with its blatant flouting of the energy market rules to boost Nordstream will ensuring Southstream was spiked, France bankrolling EDF while pretending it isn’t, China in HK, don’t even get me started on what the US gets up to and yes, the EU which did allude in fairly unmistakable terms that the UK would get a CETA FTA in return for signing the Withdrawal Agreement but then threw in a load of gotcha’s (and, as you rightly say, being very eager to say “but you signed it!” — like that makes it all okay, then…) — on and on and on.
Sometimes you have to lose something to make you appreciate what you had and what you’ve lost. So with the Rules Based International Order. If as a world community we can’t but help ourselves to, having convinced everyone else to trust us we then go and walk back our agreements and ruined the whole thing, regress back to narrow national self-interest and only then figure out the limitations of that and that next time we have to really try harder and make it work, then that’s the way it is.
As for the EU’s guilt or innocence, all I can add is that looking at its geopolitical baggage, surrounded by pee’d off to varying degrees neighbours (Russia, Turkey, pretty much the whole of North Africa, the Middle East, Israel is hardly blowing it kisses either, the Ukraine, Belarus, the US no big fan etc. etc. etc. and looking like the UK will be added to this long list) it reminds me a bit of a roach of a guy I know who has three vengeful ex-wives and is always trying to escape from the latest (supposedly mentally unstable) girlfriend. Every so often I ask him, as gently and as kindly as I can, what he puts this “bad luck” (as he describes it) down to and whether he sometimes wonders where he’s going wrong. To which he unhesitatingly replies he can’t understand it, after all, he’s such a nice guy, he doesn’t know what he does to deserve having to deal with all these crazies…
That “rules based international order” might have been “good for thee,” but not for a whole lot of “me’s” who hav been bombed, tortured, looted, colonized, austeritied and subjugated. Nice if you are the power that owns the system and sets the rules and ignores them for selfish gain, all destructive of the kinds of resilience and appropriate degrees of autarchy that might have had a prayer of stuff like keeping fossil fuels in the ground and not turning the oceans of the planet into heavily traveled highways which, like US roads, are crammed and bordered by longitudinal dumps of convenience trash.
I wonder what kind of Solomonic wisdom and deference and humility it would take to create a real “rules-based order” that does not have ISDS-type trapdoors built into it, and otherwise reins in the avarice and carelessness of people with power and impunity.
Going by past performance, it sure does not appear that the human construct is “survival-capable.” Though of course a very few humans with that certain kind of I don’t set and manipulative skills will die having had their pleasure centers stroked to the maximum extent possible, with thousands or millions of mopes being sacrificed to soak the bier of the Blessed Few with blood. Jeffrey Epstein got off easy, so has Tony Hayworth and that bunch. And there are squillionaires who are spending big bucks to become actually immortal, wither in the flesh or as avatars-cum-AI-algorithms.
I realise that the EU may not be favourites with Trump, Erdogan, Netanyahu, Johnson, Lukashenko and Putin. Is it such a bad thing to have enemies on the right and far right? Some might consider it a badge of honour.
The point was more to knock on the head the notion that the so-called international community would be standing there, curtain-twitching, and chuntering to themselves about how, oh, that’s that dreadful U.K. lot at number 47, aren’t they awful, lowering the tone of the neighbourhood (and so on).
But if we’re all just like trailer trash together and it’s that snobby EU family that’s set themselves up as all hoity-toity and better than the rest of us (but are in reality a bit of a common lot and no better than they should be), that puts paid to that idea.
I think we might all be making a mountain out of a small mole hill – I now understand why ,partially to do with the theatrics of treaty negotiations.
The EU seems to have c. 900 infraction procedures against member states at any one time – you then have to ask why the UK is only the 10th worst offender – Germany is fifth worst offender.
The EC President making the IP announcement? It’s likely the first time ever that’s been done – it’s sadly part of the EU power play ( we are the aggrieved actor) theatrics.
” But there’s no evidence whatsoever to support any notion that there’s a whole world of countries out there (outside of the EU Member States, anyway) who are sitting there clutching their pearls and horrified at how dreadful it all is. Rather, given the history of the EU’s legal interactions with other countries over the years (and this is where pots calling kettles black does come into it), you can infer the exact opposite.”
I’m sure there are many countries that have bones to pick with the EU. However, that does not mean that they will want to support the UK on this one. It has not covered itself in glory and it is increasingly difficult for other countries to support its actions. Other countries might skirt treaties or try to bend them but rarely do they go for outright repudiation.
The UK still needs the EU after this is all said and done. Other countries will also not side with the UK because they also need to maintain good relations with the EU. There is no way that this ends well. The EU is a mess but the UK’s actions are only reinforcing unity among the Member States on this matter.
No, no-one is going to support the UK and say well done lads, way to go.
But so far we’ve had nothing more than a little mild tut-tut’ing.
And the repudiation description is a little strong — the Internal Market Bill is deliberately narrow and limited in the derogations. If indeed they are derogations at all. As the UK government tells it, it’s merely saying that it doesn’t agree with the EU’s maximalist interpretation of the Withdrawal Agreement and is within its rights to be the arbiter where UK internal sovereignty is concerned (and, rather, that is the nub of the UK government’s legal stance).
There’s a big and quite un-resolvable argument about whether International Law is actually “law” in any real sense. Broadly speaking, International lawyers think it is, whereas most other people who’ve thought about the issue don’t. The key distinction is that IL cannot, by definition, contain any effective enforcement provisions. This makes it easier to understand as a series of non-binding but generally acknowledged rules for conducting international relations, which are not perfect but are preferable to the alternative, which would be a form of anarchy. So IL is rather like the rules of a club or an association, or, if you’re English, the rules of cricket. That’s not a facetious comparison either, because you couldn’t actually run the international system viably if everything were treated as a type of contract law where you quibbled over commas here and there. Things would simply grind to a halt, so there is a “good faith” presumption, written into the Vienna Convention, which everyone ultimately adheres to (OK, North Korea) because it’s in everybody’s interest to do so.
Now of course there’s any amount of actual quibbling that goes on, different interpretations, disputes about details and so on. That’s why many treaties have dispute recognition clauses. Likewise, most treaties have withdrawal clauses, if a state changes its mind or the treaty proves unworkable. And yes, in the case of the EU there are constant bleats by the Commission that this or that state is not properly implementing some part of the forest of paperwork that makes up the EU library of directives. (Oddly, the UK actually has (had?) a very good reputation for implementing EU directives. As an Italian diplomat said to me many years ago “you British complain like mad but then do as your told. We Italians agree straight away but never actually implement anything.”)
But we’re not in that situation now. This is one of the six or seven most influential states in the world, Permanent Member of the Security Council, and previously a state with a reputation for integrity and efficiency in international relations. And they have explicitly said that they are going to violate the terms of a bilateral treaty. Now of course countries arguably do violate treaties from time to time in detail, but never flagrantly and openly. Even the US has tried to argue that its behaviour in various dubious cases has been consistent with the provisions of a treaty as it interprets them, or that it’s behaviour (eg over Iraq) is still consistent with IL. Nor is this (as in the German case) an argument about jurisdiction. This is a new situation. Of course, it’s unlikely that there are too many worried conversations about this going on in the cafés of Tunis or the bars of Seoul, but that’s not the point. A country’s reputation in international relations is a fragile thing, composed largely of history and precedent. The UK has long had influence beyond the vast majority of countries in the world of its size (and often bigger) because it had an honest and competent system staffed by high-quality people, and because it was a good partner. Every UK official grew up with the idea that if you go to an international meeting and things are running into difficulty, you have an obligation to look for a solution or gather a few people together for an informal chat. I did this many times, and indeed it was expected behaviour from the UK in international meetings and negotiations. It looks as though the UK’s reputation as a problem solver and honest broker my be the 2374th (or perhaps 75th) casualty of this disastrous tragic-comedy.
Thank you, excellent overview.
Your story about the Italian diplomat reminds me of a talk I attended on the Aarhus Convention, which caused particular havoc in Common Law jurisdictions because of the weight it gives to the public right to genuine consultation on environmental matters and the rights it gives to free legal representation.
I think the law professor was only half joking when he said the British negotiating contingent blamed the Irish contingent for dragging all the English speakers to the local Aarhus pubs every night, with the result that neither the British nor the Irish diplomats were in a fit state to realise what they’d signed up their countries to.
Which means, then, it’s all just down to politics, after all? Albeit done through our old, although rather grubby, friend, lawfare. Admittedly she’s put into a posh frock, given some impressive offices and “parliament” with lots of flunkies running around looking very serious and very important.
And if so, it perhaps has given a hint as to the underlying — I’d almost describe it as primordial — fear of Remain’ers (or otherwise pro-EU believing people).
Which is that, while they’ve gone a long way and built an impressive-looking edifice, motivated by a dislike of how their countries are and the shortcomings of their political processes (and I’m not criticising, there’s a lot not to like there), they have sought to short-cut politics and bring about the sorts of changes they’d like but outside of their countries’ political mechanisms.
And if, as with Brexit (and other anti-EU movements like it), the spell is broken and the ruse exposed, they’ll be left to (sigh), pick up the pieces and have to do it all the hard way — although I’d argue vociferously it is the legitimate way and the only lasting way — all over again.
Oh, and they’ll need to make sure they bring popular support along with them next time. Which is by no means a given and much harder than lawfare that is to pull off. Especially as they’ve been less than honest with the voter about just what they’ve been up to. Found-out con artists (or, more politely, hoodwinkers) aren’t the most appealing types and are not natural magnets for public support.
So no wonder there’s so much rough and tumble.
The Brexit Hard Boy Lawyers are already squaring up for a fight on a number of grounds
https://centreforbrexitpolicy.org.uk/wp-content/uploads/2020/09/USING-NEGOTIATING-LEVERAGE-TO-ACHIEVE-A-SOVEREIGN-COMPLIANT-EXIT-FROM-THE-TRANSITION-PERIOD-26-Sep-20.pdf
That’s not really true. The difference is the EU Commission brings cases it expects to win.
They listen to their lawyers…unlike, say, Mr Johnson.
It’s more subtle than that.
The criticism is that the CJEU a) indulges in judicial activism, which is inherently anti-democratic and b) that activism is directed to strengthening the power base of the Commission (which skews rulings against both individual Member States where to rule in favour of a Member State would reduce EU integration and also against third countries — which impedes court neutrality because it has concerned itself primarily with integration-promotion first and the respective merits of the protagonists in the case second, if indeed the latter features at all).
Long form discussions here http://hanselawreview.eu/wp-content/uploads/2016/08/Vol6No01Art01.pdf
https://www.newstatesman.com/politics/uk/2020/09/end-affair-how-tory-mps-are-falling-out-love-boris-johnson
That said, I won’t hold my breath, but it’s been known for Tories that they are the party the most ready to throw a leader out of the door when “not suitable” anymore.
I think they will only do it if there is a clear viable alternative (although I would not rule out Boris jumping rather than being pushed, he seems to have belatedly realised being PM is nowhere near as much fun as it looked). The problem is that they really are running out of anyone who looks vaguely human. Rishi Sunak seems flavour of the month but I wonder if he’ll look so good after a hard economic winter.
Yes, we were here about a year ago, as I recall, and we agreed that the only reason that May had lasted so long was that there was no obvious alternative (at all, that is, I didn’t use the word “competent.”). For a long time, she was a dead weight, held up only by the impossibility of finding a successor who commanded a majority. I think we are now in version 2.0 of that, with the added amusement that there’s a new batch of Brexit-fanatic Tory MPs in the game, and the competence quotient of the average Tory MP has dropped another few points. I’m inclined to agree that Boris jumping ship may actually be one of the more likely outcomes; he looks awful and I can’t imagine he’s having much fun.
I think it is important to notice how the Coronavirus Act gives more room to Johnson and colleagues to, not to report to the congress and how this might trigger some discontent in Tory files. This could probably be inconsequential in the short term but it is an interesting drift to watch. Isn’t it?
I’m constantly amazed at this website’s perseverance about making us care about brexit. We don’t. Let them eat cake. Post something else for god sake or stop asking for our money.
There are three very interesting articles posted today, in addition to the usual wealth of links. Only one is about Brexit. Nobody is forcing you to click on it.
For the record, I find Yves insights on Brexit to be superb, far superior to anything from the UK media in particular.
Agree, and agree!
I agree. I made it clear when I sent my fundraiser contribution that next year’s donation is contingent upon this blog dropping this inconsequential Brexit stuff, which never draws any reader interest or engagement, and transitioning to full-time coverage of ECB Premier Cricket leagues.
Well I like it, anyway.
With a daughter 10 years in the UK with her French husband (don’t ask why) and a Lithuanian cousin with 5 trucks dependent upon UK trade, I find it all fascinating to see how it plays out. I’ve been telling them of the impending trainwreck for years now, informed by NC. They’re still in various states of denial on how had it will become. It’s always welcome from them for me to say “I told you so”/s.
From the broader perspective, Brexit, like CalPERS or almost anything these days, is a long running drama about the systemic rot of governments, governance, the elites at the helm and the PMC facilitators. They have become “not agreement capable”.
Yves, after reading this comment I shall throw another $100 your way simply to thank you for your excellent Brexit coverage, which is one of the (many) unique aspects of NC. I especially enjoy reading the comments from other UK and EU readers.
Don’t read the Brexit articles if you don’t like them. Don’t pay if you don’t enjoy the site. I find the Brexit articles fascinating, and a great deal more informative than anything in the MSM.
Do not feed.
One very possible consequence of Brexit is that the UK disintegrates. This would be the most important geopolitical development in Europe since the fall of the Berlin wall. For British citizens it would arguably be the most significant event in three hundred years.
I would say that in the event of a no-deal that would move from ‘possible consequence’ to ‘probable’. Scotland will go, and if that happens, Northern Irelands position would be untenable. Wales would be put in a very difficult situation with likely a lot of tension between those who see themselves as Welsh (mostly in northern Wales) and those who are essentially English living in Wales (mostly in the South).
I have to say that the fear of going down in history as the PM who broke up the UK would be another reason why Johnson is likely to jump ship by springtime.
Ultimately Cameron would be to blame, surely?
At least my first thought back on 24 June 2016 was “Congratulations, you have just broken up your country”.
I agree completely with your analysis, PK, this time and many others!
He has form here with the Boris Bikes – roll into office and take credit for one of your predecessor’s (Ken Livingston) initiatives. Of course, he was happy to cultivate that Borid Bike branding
I take it you’re one of the Brits who assumes the only consequence of Brexit will be a change in the colour of your passport.
Ok. Colour me confused about something.
On the one hand in the UK press everything seems to be very optimistic about a deal. I’ve seen such comments as “90% of the deal is done, just 10% left to do”,”The EU and UK are soon going to be going into ‘the tunnel'”,”Optimism on both sides for a deal”,”We’re nearly there”, etc.
Yet I read the above and it is a complete 180 degree turn on this. Johnson is to speak to the EU tomorrow btw.
So which is correct? The optimisitc and pessmistic readings cannot both be forrect. Is the UK about to sign a (bad) deal with the EU? Or will the EU just give the UK two options one – kill the legislation and you can have a deal or two – no deal. What are the odds of a no deal vs rubbish deal? 60-40, 40-60 …..
answers on a postcard plase…
ljones
I think the ‘optimist’ side are partly based on internal briefings which talk about progress being made, etc., etc. The problem is that you don’t expect politicians or insiders to say ‘this is completely f**ked, we’ve no chance, those guys are all idiots’. Its their job to keep up working on a deal until the last moment.
The other fuel for optimism is that in this sort of deal usually something is pulled out of a hat at the last moment, either out of desperation, or out of nobody wanting to be seen to have conceded anything too early. And of course the EU is pretty much based on the principle of successfully kicking multiple cans down the road at all possible opportunities.
The pessimism side comes from those taking a more ‘process’ oriented view of proceedings, not to mention looking deeper at the politics on each side. Quite simply, there seems to be a mismatch between the political imperative for a deal and the gaps that remain to be filled by the negotiators, and not enough time to come up with imaginative fudges. And all this is compounded by the genuine bad blood between the parties. There is real anger in European capitals at what is seen as bad faith by the UK, and this makes it far less likely that they’ll be willing to make concessions.
Of course, it looked like there was no way there would be a deal last year, and at the last minute Dublin and London managed to come up with a face saving fudge on the Irish border issue for everyone to allow for the transition deal. But this has simply stored up even more problems to be dealt with this time.
Agree with that. Negotiators are professionally optimistic: they have to be or they couldn’t do their jobs. They also, necessarily, have a sliding scale for words like “progress.” At the start of negotiations it means “we’ll finish this quickly.” As things get tough, it means “we think a solution is still possible.” As things go badly wrong it means “with luck this is recoverable.” By the end it leans “well, we’re still talking.” I suspect we are approaching the last of these: progress is often seen in procedural rather than substantive terms, so for example agreeing to meet can be considered “progress” of a sort.
More head scratching….brexit talks extended for a month. If the above is true why even bother to extend?
https://www.theguardian.com/politics/2020/oct/03/johnson-and-von-der-leyen-extend-brexit-talks-by-a-month
ljones
I am going to say two things which are profoundly misunderstood in this article.
1. Boris Johnson’s and the conservatives’ survival in power is completely dependent on him delivering Brexit by the end of the year. Boris knows that Nigel Farage waits in the background ready to destroy the Conservatives by delivering the heart of England (who normally vote Labour) to anyone else but the conservatives if they don’t deliver Brexit. That is the primary reason the Conservatives won and Labour was destroyed in the last election. Corbyn was manipulated into flipping and moving to the Remain camp which is a losing proposition outside of the London and Scotland. Yves has completely misread the British public if she believes that nothing other than leaving the EU is even conceivable. Deal or no deal, Britain is leaving the EU.
2. Given the numerous times that the EU has broken its own laws in dealing with member states, it is not surprising to discover that Britain has taken a page from the EU’s own book and is deciding to unilaterally changing the agreement on the border in Northern Ireland. And don’t be surprised if Britain decides to ignore the EU courts especially if they leave without a deal.
3. US pressure has little to no effect on what the Conservatives are going to do. Again, any act which is seen as caving to the EU will have a negative impact on their ability to survive in power. The Conservatives are willing to ignore any complaints about the Irish border and just focus on negotiating an agreement with the US next year. Trump obviously doesn’t care about it and Biden’s opinion holds no weight here in the UK.
When the UK dies, tell me you care then. The heartland of England will be toast. Capitalism is dying. Tribal warfare and national disintegration are next. The great financial project is dead. 1352-2020.
1. This may have passed your attention, but the UK has already left the EU.
2. The EU cannot break its own laws in dealing with member states, because the member states are the EU.
3. If you think US pressure doesn’t count, then I’ve a few Tridents to sell you, with a side dish of chlorine washed chicken.
I basically first came here for the Brexit coverage a couple years back, nowhere in the UK covers it as well and the comments section with voices from both sides greatly helps me understand different POVs, which I wouldn’t get in my ‘normal’ news bubble. So completely disagree with you Ian.