Issue 76: 2016 10 20: The Brexit Debate (John Watson)

20 October 2016

The Brexit Debate

Should we have one?

By John Watson

Watson,-John_640c480 head shotTo scrutinise or not to scrutinise, that is the question.  Should the Government have to publish a White Paper setting out its strategy for the Brexit negotiations?  To keen Europhiles like Mr Clegg, discussion in Parliament represents a braking mechanism, something which will make the Government pause before it throws “the single market baby out with the EU bathwater”, something which will prevent it from galloping over the hard Brexit cliff like a 21st-century version of the Gadarene swine.  Others, however, see the early publication of the Government’s position as folly. The secret of negotiation is to keep your cards close to your chest, and showing them in advance could make it harder to achieve the best deal. Better far, as the Government now proposes, to leave any debate until terms have been agreed.  Well, who is right?

The answer to that is that it’s all irrelevant. The way in which the Government must open its negotiations is obvious to all, whether it is written down in a white paper or not.   Publishing it will reveal nothing of value to the EU negotiators and, with the trigger not due to be pulled until next year, it won’t delay much either.  In truth it doesn’t really matter whether the government publishes a White Paper or not, but since we are saying that the content is inevitable, there seems to be no harm in giving our readers a preview.

Let’s start with something which will not be there, a commitment to remaining in the Single Market.  Now we would all like to be in the Single Market if we can but, if the government makes that its key objective, it will blow its own negotiating position out of the water.  Membership of the market is wholly under EU control and if Britain was desperate enough for it, the EU could exact whatever price they chose; a price which would inevitably include both free movement of people and maintaining the jurisdiction of the European Court of Justice.

Neither price would be acceptable to the British people. The ability to police our boundaries was a fundamental driver behind the Brexit vote and, unless you wish to provoke near civil war, there is no going back on it. The European Court of Justice is unacceptable too. For many years its judgements were calculated to extend the effect of EU law on the domestic affairs of member states and, although there may be less of that now, its reputation is forever tainted.  It is seen as the organ of EU mission creep and it has to go if Brexit is to have any meaning at all.

So however much the government might like to negotiate us into the single market, its stance has to be that this is not essential and that if no concessions are made we will fall back to a combination of control of our borders, no European Court of Justice and WTO tariffs. This after all is the position we will get to if nothing was agreed so the EU cannot insist on having anything in return for it.

It is on that foundation that the Government will build its position, starting with a number of swaps and areas of cooperation.

Let’s start with an example of the latter.  There has been a lot of hand-wringing about the damage Brexit will do to our universities but it is hard to see why.  Since Britain is a net payer into the EU, we can presumably replace EU grant funding with UK Government grants  There should not be a problem over bringing in foreign academics either.  Taking control of our borders does not mean we have to exclude people we want.  What about cooperation then?  Why should EU universities cooperate with us?  Why should we remain part of the Erasmus scheme?  Well, if cooperation with European institutions is currently beneficial to all parties, surely it will continue to do so after Brexit and if it is beneficial it should clearly be on the Government’s negotiating agenda.

There are a whole lot of areas like that, where it makes sense for all parties to work together.  Security is another.  If we fail to liaise on that, our common enemies will be the gainers.  Why would we not work together?

Then there are the areas where it makes sense to have a single European set of rules.  Things like environmental legislation for example. Pollution is no respecter of national boundaries and a single authority makes a good deal of sense.  Under the Government’s repeal act, all EU rules will be frozen at the point of Brexit and subsequent changes of EU law (whether effected by new regulation or decision of the ECJ) will have no effect.  Inevitably that means that EU law and British law will creep apart unless we agree that in a particular area they should march together.  Why not have areas like that? Mini communities covering particular areas? There is a good precedent for that in the history of the EU itself.  Look at the period from 1945 to 1957 and you will find that what became the EU was called the European Coal and Steel Community.

So much for the places where we agree, where the obvious course is to keep links in place.  What about the areas where our interests diverge from the rest of Europe and a combined approach has been forced on us by EU law? Fisheries for example.  There will be a list of these and in the end a trade-off will be required but, negotiations being what they are, nothing will be agreed until the Exit day gets near.  For the moment the Government will just have to list its preferred outcome and the EU will be mentally listing theirs.  No real surprise about what goes into the White Paper.

So much for any statement of our opening position.   It is most unlikely to contain any surprises. What is far more important is how the negotiation are actually conducted. Will we be tough, granite like, allowing the waves of European demands to break over us and only doing our deal at the very end?  That would be an orthodox negotiating approach. Will we, on the other hand, be more consensual, striking the pose of the reasonable party and conceding points as we go along?  It is probably the approach the markets would prefer but any experienced negotiator will tell you it is not how you get the best deal. Still, the Government may not have any choice. It will be besieged by special interest groups, anxious to make a concession which will give them a corresponding advantage. Motor manufacturers will be keen that a special deal is done on tariffs, for example.

If managing the politics in Britain will be difficult, however, it is likely to be a bagatelle compared to the difficulty of getting a binding consensus between EU states.  This week a vote in Wallonia has jeopardised the entire EU Canada trade treaty. As a treaty it has to be ratified by each member state but, although Belgium is generally in favour, under its constitution Belgium cannot ratify unless each district agrees.  Wallonia has said no. Everything is thrown into chaos and the Canadian treaty shows every sign of joining the treaty with the US as one which has simply became too difficult politically.

That perhaps is the most difficult side of the forthcoming negotiations. Suppose that we can agree with the Germans or even with the French.  Where all the European states need to agree, things may not be able to move forward.  Look at the negotiations against that background and they seem doomed to fail.

It is for that reason that the best hope of a successful outcome (for either side) is a change in the way in which the EU makes its decisions. On the face of it that seems a lot to hope for but the politics of the EU are clearly changing at the moment as tensions emerge between the old members and those, more recently absorbed, who are less keen on integration. Who knows where it will go? Will the pressures result in a better decision-making mechanism? Will more bits drop off?  Possibly.  The only thing we can be sure of is that by the time Brexit comes round, the EU, Britain and their respective positions will look very different from the way they look now.

So if the government does set out its strategy in a White Paper it means very little.  It will have to change to meet changing circumstances.  By the time Brexit comes up it will probably be unrecognisable.


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