14 March 2019
The Great Game of Cheat
A Plan B for Brexit.
By J R Thomas
In the build up to the Battle of El Alamein in 1941, that gifted German general Erwin Rommel spent a great deal of time planning the battle and how he would win it against the British and Anzac forces led by General Bernard Montgomery. Part of the art of winning land battles is of course to use the terrain to your advantage; Marston Moor and Bannockburn are great examples of how that can be done (and Hastings as to how sometimes it does not work out). Often, though, the terrain is complex, and parts are of unknown or dubious advantage. Not so, Rommel realised, in the desert. That was like playing chess on a large clear sandy board. Although not as well-resourced as the Brits (he was particularly short of fuel for manoeuvring), he arranged his armour and his troops taking all advantage of the desert for a headlong clash and a quick victory. As is known, he lost. And why? Because, Rommel apparently averred after, Montgomery cheated. In an act of great perfidy, Monty observed the Germans moving into place and understood their strategy, and instead of lining up accordingly for a head-on encounter, his troops were sent south and north, around the end of the German lines, to attack from the ends and ultimately the rear. Chaos in the German command, and the battle for North Africa won by the Brits. (This is, I appreciate, a very simple sketch of what actually went on, expert readers please note.)
So are the plucky Brits now facing the Battle of the Backstop? Mr Junker and Mr Barnier have certainly chosen their final (for the time being) field of battle very carefully, even trying to confuse Mrs May in her last minute dash by moving the action to Strasbourg instead of the more familiar terrain of Brussels (too close to Waterloo perhaps for Mr Barnier’s great showdown). It would be nice to think that Theresa has become as wily a thinker as Montgomery, that all her build-up has been a series of misleading dashes to confuse her EU opponents, of feints in the wrong direction to lead the disciplined Commission negotiating team away from her true strategy. In short, or in long, that she is going round the end and will be attacking where Mr Junker least expects it. But if that is what it is, she does not seem to have informed her troops, who are increasingly moving in all directions except the one Mrs M would like. Even the Cabinet is rumoured to be in conclave without her.
So, given a complete failure of negotiation, strategy and communication, where does Brexit go next? A new commander-in-chief would seem called for, but that is not likely to happen before 29th March. Nor is a no-deal exit. Or a second referendum, not least because nobody will agree what the question might be – it would seem to require one of those decision tree matrices to deal with the complex options. The Commons refuse to go along with the agreed deal, but no other deal is available, or agreeable.
So here is a little suggestion to our highly principled and upright Members of Parliament (we are adopting the rule of the house that all members are Most or Right Honourable). Try that old and highly regarded British sport of stretching the boundaries, being economical with the actualité, adding a paragraph in invisible ink. In short, cheating, going round the end, and crossing fingers and toes whilst doing so. Doing one thing whilst meaning another, and when found out saying “Well, sue me, then”.
Sign up to Theresa’s deal (crossing fingers) and out we come, then we start to rebuild our relationships with our European neighbours – many of whom with cars or cheese or clothes to sell us will be much more friendly at a national level than the haughty bureaucrats in Brussels (and Strasbourg). Then in two or three years when the Berlaymont bureaucrats will still not let us finally escape, when the backstop means stop, when perchance maybe say Hungary and Poland and even Italy have to be deterred from contemplation of following us; then comes Plan B.
There is, as Sabine Weyand (Mr Barnier’s formidable legal expert) said last week, no reasonableness test in European law, which is about certainty. That has been the whole approach of the EU negotiating team; simply to ask: “What does the law say?” In fact the Euro law applying to countries leaving the club says very little that is applicable to this situation, so the applicable rules are those to be applied to a country not in the Union and without arrangements regarding trade and movement of persons and financial compensation for future agreed expenditure. The European team has simply applied those laws, and then topped it off with a slightly odd figure of £39bn leaving fee. David Davis when chief negotiator knew a try-on when he saw it, but Mrs M didn’t, or was desperate for a deal, so here we are with a bad deal.
But what happens if things are mostly agreed, or partially agreed, but still the backstop is in place and we cannot escape? And presumably Mrs May has retired to Maidenhead, or wherever be her preference. The new Prime Minister could say at that point, “Enough is enough, and we will no longer be bound by our remaining obligations to the EU. We now unilaterally rescind your remaining terms. Good morning and good-bye. P.S. We don’t recognise the European Court any more. Try suing us.”
What would the EU actually do in that situation? They cannot really sue us as there is no commonly recognised court to sue us in. We are not going to put up a hard border in Ireland as there is no need to do so, and we have managed without one for (by then) a century. Is the EU or the Republic likely to create border controls? Of course not. Is the EU likely to send gunboats or blockade our harbours? Equally of course not. Stop sending BMW’s and camembert and Dolce e Gabbana to comfort the Brits? Indeed not. The Commission might impose punitive tariffs on UK exports to Europe, make travel more difficult, have specially obstructive queues for arrivals of British passport holders, but the trouble with that sort of thing is that retaliation in kind is just too easy. And given Europe’s huge imbalance of trade that would quickly become very unpopular with workers and businesses in Europe.
Yes, we would be cheating, we would have signed knowing that we might… um… wish to reinterpret certain words and clauses, to consider some complex phrases in the light of further and better particulars and in the light of the passage of time. But that happens; British law at least is a moveable feast, responding to changing circumstances. And there is another helpful factor, of course. All the main players would have gone, retired, Mr Junker to spend more time with his vintner, Mr Barnier to skiing and cycling (well, he looks that sort), Mrs May to Maidenhead-les-deux-Eglises. A new generation of leaders could agree that we can all be friends, that Europe and the world’s problems are much greater than petty arguments over details in a half forgotten and misunderstood agreement. After all, freedom and democracy must be worth a little cheating.