Thursday 2 March 2023

Has Britain’s Brexit fever finally broken?

Where to start, after one of the biggest weeks for Brexit news for a long time? Perhaps with my post of a fortnight ago when I discussed two scenarios for Britain’s immediate post-Brexit future. In the first, there would be a gradual move to rapprochement with the EU, taking pragmatic steps to improve the tone and substantive quality of the relationship. In the second, there would be ongoing antagonism and an ideological drive to divergence. I suggested that what happened over the Northern Ireland Protocol (NIP) negotiations would be a key test of which of these would prevail in the battle for the post-Brexit polity, and concluded that for the first scenario to come about the Brexit “fever has to pass”, which would then be followed by a long period of recuperation.

So, does the announcement on Monday of the ‘Windsor Framework’ (WF) as the outcome of the NIP negotiations mark the breaking of that fever? And what does it mean for achieving, or even going beyond, a scenario of rapprochement with the EU?

I’m not going to summarise the provisions of the WF here. The full suite of UK technical documents is available online, including the Command Paper which gives a detailed overview, with the corresponding EU documents appearing on the European Commission website. Moreover, there are numerous good summaries available including a House of Commons Library research briefing, an excellent detailed explainer from the Institute for Government, and an assessment from BBC Northern Ireland of what it means for Northern Irish businesses. It has also been widely reported in the news, as have the initial reactions of the main political parties.

Instead, in this post I will make a few observations and comments.

The Windsor Framework

The WF does not ‘replace’ the NIP, but rather amends and modifies its operations. That isn’t a criticism, because despite Brexiter fantasies there was never any possibility of it being otherwise, but it is a corrective to some of the claims and reports. The operational modifications are considerable and highly technical, will take time to implement, and the detailed ways that implementation will work will only emerge over time. There might also be unintended consequences: one which has already been flagged (£) is the possibility it will further depress GB-NI goods volumes through Wales’s already Brexit-ravaged ports, because they link to ports in Ireland rather than Northern Ireland.

Nor, despite claims by Rishi Sunak, has the WF “removed any sense of a border in the Irish Sea”. There will still be a border, and whilst it has been very considerably simplified, especially by the creation of the green and red channels, even the green lane does not mean a complete absence of border formalities. But there is no doubt that the WF is significantly better, in the sense of being operationally easier in this and many other ways: border frictions are probably the minimum they could be given the realities of Brexit.

In relation to governance and sovereignty, whether it is a better is open to interpretation as, of course, was whether the unmodified NIP was problematic in those respects. Northern Ireland is still treated differently to the rest of the UK (though unionists don’t always object to that) precisely because the Protocol means it remains in the EU single market for goods. As a result, there is still an ultimate role for the ECJ, as there was always going to be, and the new ‘Stormont Brake’ mechanism, whilst a significant innovation, doesn’t constitute the ‘unequivocal veto’ the government is presenting it as. However, again, the new governance arrangements represent the most minimum role for EU law and the least intrusive role for the ECJ that could realistically be envisaged.

In this sense, whilst the WF can be seen as having obtained very extensive ‘concessions’ from the EU, the reactions of the Brexit Ultras and the DUP are inherently matters of political judgement rather than the outcome of any ‘objective tests’ or legal scrutiny they might apply. It would be perfectly possible, taking the hard line that some in those groups have long adopted, to say that neither sovereignty nor parity with the rest of the UK have been achieved. If so, that would render any conceivable version of the NIP impossible. No doubt many in those groups would like to make that so, but they may not judge it politically viable to insist upon it, a point I’ll come back to.

To the extent that this is, indeed, a genuine improvement on the NIP, there are two obvious points to be made. Firstly, it is hardly a ‘triumph’ so much as further evidence of the dishonesty and incompetence of the original Johnson-Frost negotiation, of the dishonesty with which it was presented to the electorate, and of the dishonesty of the Tory MPs, and Tory and Brexit Party MEPs, who voted for it. Secondly, even having created that original mess, it would have been perfectly possible, as Fintan O’Toole explained this week, for something like the WF provisions to have been agreed at any point after the NIP became operational in 2021.

That it was not done before, and that it has been now, is because all of the Brexiter bluster about ‘playing hardball’ with the EU through drastic threats and unilateral breaking of agreements was not just hokum but bunkum. That in turn also discredits the recurrent Brexiter lie that it was the ‘remainer parliament’ making ‘no deal Brexit’ impossible which was the reason for agreeing the NIP they later disowned. The WF simply wouldn’t have happened if Sunak hadn’t paused the NIP Bill, something clear from multiple ‘insider’ accounts of the negotiations (£). All this is to Sunak’s considerable credit, as well as, apparently, to that of James Cleverley, Chris Heaton-Harris and Steve Baker.

More generally, the WF happened because Sunak adopted a totally different approach, based on pragmatism, realism and ‘technocracy’ rather than ideology, fantasy and aggression. In other words, he not only dropped the threats, but, in a positive sense, replaced them with sensible engagement. This, and the related trust such an approach was able to engender, was something which Johnson was congenitally incapable of and which May, for all that she came to have some elements of Sunak’s pragmatism, couldn’t deliver on whilst the Brexiters were in full cry. For the first time since the Article 50 process began, the UK fielded a ‘serious’ negotiating team at the political level, comprised of Brexiters, certainly, but apparently relatively free of Brexitism.

A new chapter in post-Brexit relations?

With Sunak’s different approach has come something more than the delivery of the WF itself, in that there is now at least the possibility, explicitly expressed, of a complete re-set of UK-EU relations. One initial sign of that is that, within the WF, there is a commitment from the UK to completely drop the NIB Bill and for the EU to drop the infringement proceedings relating to the UK’s unilateral flouting of the NIP grace periods. More generally, in the Political Declaration it is stated that “the new way forward on the Windsor Framework marks a turning point in how both the United Kingdom and the European Union will work together collaboratively and constructively” (p.4).

The immediate fruits of that appeared during the press conference announcing the agreement, when Ursula von der Leyen indicated that UK participation in the Horizon Europe science programme could now be progressed, and Sunak spoke of other areas of possible co-operation, such as energy security. Moreover, again in the Political Declaration, “both the European Commission and the Government of the United Kingdom express their intention to fully exploit in the future the potential of the Trade and Cooperation Agreement” (p.1). So, here, there is an implicit recognition that, even within the limited remit of the TCA, the Johnson-Frost approach also delivered a sub-optimal outcome which the government will now seek to rectify.

The idea that the WF heralds a new and better chapter in UK-EU relations was underscored by the meeting between King Charles and von der Leyen. That occasioned much fury from the Brexiters (£), with Jacob Rees-Mogg clutching his pearls about constitutional impropriety (pearls made rather grubby by his own role in involving the monarchy at the time of the illegal Prorogation). Some saw it as an attempt to butter up the unionists by implying a Royal seal of approval for the deal. But I think its real significance, intended or not, and the real reason for Brexiters’ anger about it, was to symbolise a kind of healing of the rift and rancour that Brexit brought and hence to cement a re-set of relations.

Such as re-set has been on the cards for a while, partly because of Ukraine, and partly because the implosion of the Truss mini-budget put the issue of economic realism more centrally into UK politics than it had been since the Brexit referendum (and also did much to discredit the entire Brexitist world-view). It also, undoubtedly, has become more politically possible because of the now firmly established public view that Brexit was a mistake and has been highly damaging.

However, it is important to recognize that the WF, assuming it goes ahead, does not mark the point when Brexit is ‘done’, or even that the Protocol is done. In relation to both it is a moment, pivotal perhaps, but still only a moment, in what is and will always be the ongoing process, or processes, of Brexit. What the WF does, as regards the Protocol, is somewhat re-define those processes and, as regards Brexit more generally, potentially change the tone of the processes. So even if this is the beginning of a new chapter, it is only an early chapter in a very long book, itself only the first of several thick volumes.

The Ultras’ reactions

Naturally the Brexit Ultras, especially outside the Conservative Party, are viewing all this with dismay with, for example, Richard Tice of the Reform Party denouncing it as Brexit in Name Only (BRINO). But although that betrayal narrative will always fly with the hard core of leave voters it’s a message with diminishing traction because it has been the constant cry of wolf of people like Tice. Indeed, he implicitly recognizes this in saying that the WF “reinforces” BRINO. For if we already had BRINO then there’s not really anything new for him to complain about. Equally, the more insistent he is about BRINO the more he opens up the obvious question that, in that case, we might just as well reverse Brexit entirely.

The situation for the Ultras inside the Tory Party is rather different, not least because, unlike the Reform Party, they will soon be defending their seats at a General Election. In the immediate aftermath of the WF announcement they have been rather muted and are clearly split. The enthusiastic backing for the deal from Chris Heaton-Harris and, especially, Steve Baker did much to blunt any attack the ERG might have envisaged. It would also seem that the ‘traditionalist’ or ‘pragmatist’ sections of the party have been unusually robust in showing their impatience with the default vexatiousness of the Ultras and the default ambitiousness of Boris Johnson.

There is also clearly an awareness, not just from the pragmatists but also shown by Rees-Mogg, that inflicting a defeat on Sunak as a vehicle for a Johnson comeback would carry huge electoral dangers for the already floundering government. Johnson himself initially remained silent, and didn’t even attend Sunak’s announcement in the Commons. But yesterday he said he would “find it very difficult to vote for” the deal, and expressed a preference to return to the approach of the NIP Bill. However, to the extent he said he “hoped it would work”, he held off from outright condemnation and seemed to imply that if the DUP accepted it then so would he. (The speech itself included a litany of dishonesty about Brexit which I don’t have space to discuss: suffice to say there were no new lies).

This is all in marked contrast to the talk from just two weeks ago of a Johnson-led rebellion of 100 or more Tory MPs. There’s an element of chicken and egg here, since a groundswell of rebellion would embolden Johnson to take his chance to lead it, whilst the absence of leadership from Johnson means there is little for potential rebels to rally around. It’s a further illustration of his less than Churchillian propensity to ‘lead from behind’.

Then, too, as Rafael Behr points out this week, “the terrain of battle [provided by the WF] is so small – a scrap of European court jurisdiction under a mound of procedural safeguards in Northern Ireland”. Creating a massive political crisis from such unpromising materials is hardly likely to impress bemused and, at least outside Northern Ireland, largely indifferent voters, and nor does it provide an especially heroic hill for even the most red-faced and plumply excitable of the Spartans to die on. The only Brexiter MP so far to suggest she might entertain doing so is Nadine Dorries (£) and it’s not clear that, even amongst those who in some cases could, not uncharitably, be called somewhat unhinged, hers is a voice that commands immediate respect.

Is Brexitism dying?

As a result of all this, it's tempting to argue, as Behr does, that this moment reveals that “Brexitism is dying and Johnsonism may be dead”, which I suppose is another way of saying the Brexit ‘fever has broken’. It is certainly the case that the Brexitists have been wrong-footed and are floundering. It’s also true that this is one of Johnson’s lowest moments, with his own failed Brexit deal exposed, along with the depravity of his naked opportunism. From that point of view, we might be seeing a significant shift in the ‘Brexitist versus Traditionalist’ civil war in Conservatism that I discussed in a recent post. But I think it is a little early to write the obituaries just yet.

First and foremost, there is still the matter of the DUP reaction, with reports that they are split on which way to go. That split undoubtedly reflects the fact that their decision isn’t so much about the terms of the WF as what advantage they may or may not see in continuing to have a pretext to collapse the power-sharing institutions. In this sense, whilst ostensibly taking time to get legal assessment of the deal, this is, as I said earlier, primarily a political calculation.

Sunak has strongly implied that the WF will go ahead, unchanged, even if the DUP continue to refuse to allow the Northern Ireland Assembly to sit. But, if so, it’s clear that Johnson and at least some of the ERG will take their cue from the DUP (£) to argue that what it now suits them to call the primary rationale for the WF has not been realised. As they wait, the ERG have also turned the matter over to its ludicrously named ‘Star Chamber’ for legal scrutiny.

One straw in the wind as to how the Ultras are thinking came with David Frost’s response to the WF (£). In general, it showed not a shred of insight into his own culpabilities and failures, but the fact that Frost has about as much self-awareness as a toilet seat is hardly news. More interestingly, the article contained neither a complete repudiation nor a complete welcome of the WF. Thus it recognized that there were some substantive improvements that were “worth having”, and implied that the agreement was likely to go ahead. But it also recognized that the “fundamental Protocol framework” remains in place, ascribing this, inevitably, to Sunak’s failure to maintain the threat of passing the Northern Ireland Protocol Bill.

In this way, Frost left open the possibility of a more full-throated rejection of the WF in the future. So in effect he is waiting to see which way the wind now blows: notably, he tweeted his article as being only “an initial comment” on the deal given the complexity of the documents. But, on the basis of what he has already said, it’s clear that whatever the detail of those documents, the WF is not, in his own terms, the wholesale re-writing, still less ditching, of the Protocol that he and other Brexiters want.

A similar line is being taken by Jacob Rees-Mogg, now moonlighting as a presenter on GB News, who appears to regard it as some dastardly EU trick that the letter of international treaties is binding. But, again, his comments about the continuing role of EU law in Northern Ireland show that, even without reading the small print, he already thinks the WF violates the Brexiters’ version of ‘sovereignty’. In short, as with Johnson’s predictably self-serving stance, this is all about buying time during which it’s possible that the initial momentum Sunak got for the WF may stall whilst that of a rebellion grows in advance of the promised vote.

For what it’s worth, my sense is that as this week has progressed the opposition to the WF has slightly hardened, with an increasing cohesiveness in the attack lines the Ultras are running and, though that might simply reflect the way the deal was revealed, the more time that passes the more opposition to it will consolidate. Certainly if the DUP were to reject the deal it would do so.

The other aspect of the fate of Brexitism is the question, assuming the WF does go ahead, of how ruthlessly or consistently Sunak will then follow-through. In particular, is he really willing to heap further coals on the ERG’s head by scrapping, or at least slowing the time frames of, the Retained EU Law Bill (REUL)? If so, that would be a fresh blow for the Ultras (though it might also galvanize them to re-group). If not, then, apart from being yet another Brexit hit to business (£), the rapprochement with the EU that the WF presages will falter and, conversely, Brexitism will be given a new lease of life.

What does it mean for remainers/re-joiners?

So much for the Brexiters. What about remainers and re-joiners? In general terms, they should welcome the WF as, at least potentially, a return to some kind of realism and pragmatism. If nothing else, if the outcome is to restore the Northern Ireland Assembly to operation, and to help stability there, then that is something everyone should be pleased about. Many of us, not just in Northern Ireland, though of course especially there, have dark memories of the decades before the peace process and the Belfast Good Friday Agreement.

Beyond that, there’s a degree of relief in an improved tone in UK-EU relations after all these years of hostility, a hostility that was totally unnecessary even given Brexit. Moreover, to the extent that it may create something like a scenario of ‘rapprochement’, that would be, as I’ve argued before, a necessary but not sufficient condition for the possibility of joining the single market, a customs union, and even the EU itself.

Against that, it would be unhelpful to remainers, and simply untrue in itself, if either the WF or the improved relations that could flow from it were widely regarded by the public as having ‘got Brexit done’ or having done anything to redeem the damage of Brexit other than to have sanded some of its very roughest edges. It just undoes some of the worst, most egregious and most unnecessary harm of Brexit, whilst serving as a reminder of the utter incompetence of the way it was done. The core, irreducible damage of Brexit continues.

However, it’s important not to be trapped into a version of the Leninist maxim that ‘it has to get worse before it can get better’ or, to put that differently, it may be that it had got as bad as it is going to and we are now on an upward curve. In particular, it is highly notable that within a few hours of the WF announcement numerous people, including the SNP’s Westminster leader Stephen Flynn, were beginning to ask the question that if this was indeed a good deal for Northern Ireland then what about the rest of the UK? It is a question that has gained salience during the week with Sunak’s repeated argument that being in both the EU single market for goods and the UK single market is a huge advantage.

We’ve been here before. In the early days of the NIP Michael Gove repeatedly stressed that Northern Ireland had “the best of both worlds” for exactly that reason. But that was before it was actually implemented and the idea got lost as the NIP became mired in rows. Now it has returned, and with new force given that there is so much evidence of how economically damaging leaving the single market has been. And if it is accepted that the single market for goods is advantageous, then why not services?

The same reasoning applies to non-economic issues. If Horizon, why not Erasmus? If science and education, why not climate and environment? If energy security, then why not security in all its aspects? If sanctions, then why not foreign and defence policy? If ‘small boats’, then why not replicate Dublin 3 regulations? Ultimately, once the basic premise of co-operation, as outlined in the WF, is established then all of these questions become re-opened. In this way, the UK might discover through painful experiment the principles of co-operation that are ingrained into, and institutionalised by, the EU. Of course, this is exactly the path that the Brexiters fear the WF leads to: which is all the more reason for remainers and re-joiners to support it.

But there is also a conundrum in doing so. It could be that Sunak reaps political rewards for the WF, either directly, for the agreement itself, or, more likely, indirectly, in the sense of having shown he can ‘solve problems’ and control his own party. If that yields improved opinion poll ratings for the Tories, then it will do much to keep the Brexit Ultras under control, which should cement his more cooperative approach to the EU. However, it is all but impossible to conceive that his approach would go beyond friendly cooperation to, say, joining the single market, still less the EU. So if, along with other things (e.g. reduced inflation), the WF contributed to him to winning the next election, unlikely as that currently seems, then ‘friendly co-operation’ might become the end-state for the medium-term. There could be worse things than that, of course, but there could be much better.

So what about Labour?

It's here that Labour policy becomes crucial. If the WF is significant in potentially re-setting UK-EU relations, it is also significant in its potential to recalibrate the domestic politics of Brexit. For what Sunak has done with the WF is, in effect, to adopt the entirety of Labour’s current position as government policy, which is why Labour had no choice but to support it (and, anyway, were right to do so). Labour, as Keir Starmer and David Lammy have made clear, propose improving the tone of relations, resolving the NIP row, extending co-operation, and making full use of the possibilities of the TCA for a closer trading and security relationship. All that is now, explicitly, Sunak’s policy.

Assuming that policy holds, it is both a challenge and an opportunity for Labour. A challenge because it deprives them of a distinctive policy and makes their offer to erstwhile remainers look even more puny. An opportunity because it creates a political space, and arguably a political necessity, to be more ambitious. That space was opening anyway, because of public disaffection with Brexit, but the WF makes it larger. It will be harder for Sunak to ridicule that for being too soft on Brexit when it is not only the logic of his own position but also the same critique as the Brexiters make of him.

Of course it’s possible, as Rafael Behr’s column argues, that Starmer will now simply park Brexit as a ‘non-partisan’ issue. But there’s likely to be considerable pressure from within his own party to do more than that.  It’s of note that within hours of the WF being announced the senior Labour MP Chris Bryant raised the point that if Northern Ireland benefitted from the EU single market then the same should be true for the rest of the UK.

Arguably Starmer has prematurely boxed himself into a corner by setting red lines against the single market or a customs union, but there is some wriggle-room since he has generally couched things in terms of there being ‘no political case’ for the single market. It would be just about possible to use that as cover to say that the politics subsequently changed, and apart from its electoral appeal to most Labour voters that would burnish Starmer’s increasingly positive relationship with business. It’s not likely, but it’s more likely than it was because of the WF, and may become still more so before we get to the next general election.

A moment of hope?

So, after all this, has Britain’s Brexit fever broken? It’s a little too early to be sure – and even if it has, further relapses are to be expected - but I think it is possible. It would have been almost unthinkable before now that the UK Prime Minister and the European Commission President would have given the kind of joint press conference that we saw this week, either in substance or in tone.

It would have been still more unthinkable that it could have happened without an immediate, overwhelming outpouring of angry opposition from Tory Brexiters and the Brexit media. That may still come, but so far it has mostly had a strangely weary and resigned quality. But perhaps a better sign of whether the fever has broken will be if, indeed, Labour develop a more ambitious policy, since this would show that the fear that Brexit is too hot to touch was subsiding.

If there has been a shift, it isn’t simply because of the Windsor Framework, or even just because of Sunak’s consensual approach. It is a result of many things – Ukraine and the Truss mini-budget fiasco, as I mentioned earlier, but also sheer exhaustion and boredom. More fundamentally, it reflects the growing realization, over many months now, of just what a disaster Brexit has been. Even Brexiters now offer only the most lacklustre of defences for their project and, crucially, defences are all they are. The grand national liberation they once proclaimed has turned to ashes.

So although it is a moment for a modest amount of hope, it is a hope which is the bitter fruit of failure. After all, if the Brexit fever has broken, it was the fever of a self-injected malady. And if a corner has been turned, it is only to the long road of re-building from those ashes, the legacy the Brexiters bequeathed, and their monument too.

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