Brexit – Apportioning the Blame

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The immediate prevailing emotion on the eve of Brexit is a form of relief. It is understandable and benign. The three-year farce has taken its toll. Closure, at last.

There is another sense of relief, felt by many, understandable too, though less benign. It is the ‘good riddance’ form of relief. It is easily detected and openly declared by the British Brexiteers: good riddance to Europe. (Yes, we are back to speaking of Great Britain and Europe). But it also is quite widely shared in Europe, though spoken quietly and behind closed doors: good riddance to Britain, often accompanied by ‘de Gaulle was right after all’; ‘they (the Brits) never really embraced the European Construct; never really believed in “An ever closer Union”’; ‘they never shed their Island mentality, their pathetic Battle of Britain ethos’, and similar sentiments. What underlies this sentiment is treating Britain as a Special Case, an ab initio error that has finally been corrected.

No one should cheer this day. Europe is the poorer in so many ways for the UK having left. Britain might well be the poorer in even more ways. Time will tell.

I speak of ‘apportioning the blame’. Blame for what?

There is, first, the blame for what has been a disastrous process – farce, tragicomedy, the ultimate refutation of ‘rational choice’ – all come to mind. There is an acerbic Jewish saying that there is nothing that is so bad that cannot be worse. Every passing month in the unfolding Brexit saga was a living confirmation of such.

But there is a deeper ‘blame’ (for want of a better word). The question is not who is to blame for the UK leaving but there is a much more poignant question, namely: Why did so many citizens of the UK both in the referendum and in the recent elections come to the conclusion that they wanted out? For many it was not the result of a serious cost/benefit analysis, but speaking from the gut.

It is, in my view, the real question to ask for Brexit was but the terminal stage of a malaise that is affecting large segments of European populations in various Member States. The ‘Battle of Britain’ ethos might explain why the Brits actually took the plunge. Other Member States are ‘smarter’. Why leave? But some appreciable degree of Euroscepticism is a staple of what we have come to call Populists, and these are no longer marginal voices on the lunatic fringe of European politics, but in relatively short order have become part of mainstream politics in too many Member States for comfort. When I say mainstream, I do not necessarily mean a majority, though Ms Le Pen did win, significantly, the last European elections. I mean that they are part of the message of large parties that have moved from the fringe to the centre. And, of even greater alarm, the European strain of the virus has a virulent streak, which was not largely present in the UK case: the Euroscepticism is accompanied by a strong sense of disillusionment with the fundamentals of liberal democracy, which in some ways is an even more malignant pathology than ‘straightforward’ Euroscepticism.

By explaining Brexit under the British exceptionalism umbrella, and feeling confident, rightly so, that there are no other candidates ready to jump ship, we alibi ourselves from some serious soul searching about that other strain of the virus, which may not be terminal but is no less and perhaps even more inimical to the future of the Union and the well-being of democracy in Europe.

In this Editorial I will address the issue of the process. In a future one I will address the more fundamental question of widespread citizen alienation from Europe and liberal democracy.

So who is to blame for the tragicomedy we have experienced in the last three years or so?

It is useless to spend too many words on those ‘Magnificent Brits in their Flying Machines’, taking flight from any semblance of responsible governance in the 21st century. Nota bene: this is not judgment on the actual decision to leave, but on the process by which it was brought about and then managed.

It started with the reckless David Cameron. (See my ‘There is Chutzpah and Then There is David Cameron’ of October 2016). The breathtaking superficiality and irresponsibility with which he was willing to gamble the future of his country in order to solve a Tory party dilemma. It became rapidly clear that there had been no serious (probably none at all) preparatory work as regards process or what the reality of Brexit would actually mean. Do you recall the difficulties and subsequent interminable delays he had in actually drafting the ‘conditions’ the Union had to fulfil in order for him to recommend Remain? It was clear that when calling the referendum he had not even thought of that. Do you recall the rubbing of the eyes with disbelief when finally his thin gruel was presented? For these demands he was calling a referendum? And then the brazenness with which he suddenly shifted and adopted as his refrain for the referendum campaign ‘Brits Don’t Quit!’ If Brits don’t quit, why had he called a referendum? And fast forward to the decent but inept Theresa May. All I will say is that I am convinced that when the infamous backstop was negotiated she simply did not understand its ramifications. Were her advisors and the accompanying civil servants equally inept, or, if you are inclined to deep state theories, did they conceal from her the meaning of what she had signed on to in the hope that when the naked truth came to light it would bury Brexit? Be that as it may, it was clear that the UK negotiators were outclassed and continue to be outclassed by their Union counterparts at every twist and turn along that long and winding road.

I would just add that May’s incomprehension dwarfs in comparison to that of the self-contradictory and confused Corbyn. To this day I do not believe he truly understands the meaning for the UK of remaining in a customs and regulatory union for the very policies he was advocating in his own election campaign.

One could go on and on (and on) but for what purpose? Far more interesting is some introspection about the role of the Union and its ‘blame’. The UK were certainly the Seven Dwarfs but the Union was no Snow White.

A quick mention should be made of those who drafted Article 50. It is clear that they had the correct idea that the process of leaving the Union should be clarified and regulated by law. It is equally clear that they gave little thought (it seemed a theoretical possibility, no?) to the practicality of what they had drafted with the laughable time frame, the irrationality of the rules regarding unanimity and majority, and the ambiguity as regards revocation which had to be resolved by the European Court of Justice. I would not argue that the ECJ was ‘wrong’ in its decision; it is one of those cases where the law would allow both interpretations – as evidenced by the fact that both Legal Services of the Commission and Council held a different position from that adopted by the Court. As a matter of policy, I think the Commission and Council were right and in any future renegotiation of the Treaties (a Pandora’s Box which should not be opened lightly) the Article should be amended.

This was a negotiation of non-equals, though on occasion I was reminded of the fierce little toy poodles who bark ferociously at our rottweiler when out on a walk. Such inequalities pose a particular responsibility on the rottweiler. From my maternal grandfather, a rags-to-riches, self-made millionaire (decorated by the King of Belgium) I learnt at an early age an obvious piece of wisdom. Even if you have more business leverage, do not push your advantage to the full. In any negotiation, both parties have to walk away feeling they have concluded a good deal. And not only feeling such, but if you want the deal to endure, they actually have to walk away with a good deal. (I wish Mr Trump had met my grandfather. He would have avoided many of his own bankruptcies and would avoid bankrupting the international trading system, and much more.)

Juncker, an historic Commission President in my view, followed this wise practice to the full in responding to the hapless Cameron’s ‘conditions’. He bent over backwards, even agreeing to a resolution on the migrant worker issue that was doubtful under Union law. But once the referendum went South, the posture of the Union changed and the grandparental wisdom was abandoned.

Here is a partial list – guaranteed to raise many hackles.

Though denied again and again, there is sufficient Google evidence from countless politicians in several Member States to the effect that the meta-posture of the Union was to ‘play it tough’ in order to deter other exiteers. I think this was misguided for two reasons. First, I do not believe in Catholic marriages. The peoples of Europe should remain wedded to the idea of an ever closer Union out of conviction, and not fear. As mentioned above, a recalcitrant and truculent partner within can wreak more damage on the future of the Union than a friendly Associate Member. (For more on this, see ‘The Case for a Kinder Gentler Brexit’ of February 2017) And, second, if, as should be the case, one understands that even post-exit, an alienated UK is not in the interest of the Union, for economic and geo-strategic reasons, that meta-posture often turns out to be counter-productive.

The tough divorce terms first, and only then withdrawal agreement negotiations, was, in my view, sheer folly. Given the Article 50 time constraints it was a painful and unnecessary waste of precious time. Could anyone seriously believe that had the withdrawal negotiations failed, resulting in a hard Brexit (as was a distinct possibility – and then the blame game would have started in earnest), the Brits would have respected the divorce settlement? That this would be the case became clear in the march towards the cliff in the final months of last year. (And this is not Monday morning hindsight reading of the Sunday football match – if you take the trouble to read the Kinder Gentler Brexit piece above.)

In the ‘tough negotiations’ now beginning, there will be a large part that is purely technical. Could that not have been gotten out of the way alongside the divorce talks, leaving the political issues for now, a kind of A and B list? Wasted time in my view, the price for which one will pay now.

The backstop would guarantee the integrity of the Union’s customs and regulatory territory but at the expense of the integrity of the UK’s customs and regulatory territory, and de facto and de jure force the UK into a permanent customs and regulatory union. Chapeau to the Union negotiators for having the UK swallow that frog without even noticing. Do you recall the British dismay (including May herself) when the UK Attorney General finally made that clear to all and sundry? But was it in the interest of the Union to push for this solution – a solution which a country like, say, France would never ever accept for itself? A forced de facto customs and regulatory union.

Full disclosure. Sir Jonathan Faull, Daniel Sarmiento and I, put forward a much discussed and much contested alternative approach (The Financial Times called it the Win-Win Solution – we continue to believe that there were answers to all the objections that were raised, but the Commission team seemed to be locked into their repeated assurance that there were no alternatives to the backstop). Be that as it may, (or May) eventually the original backstop had to be modified, though at the price of a huge concession by Boris: the introduction, however disguised, of a customs frontier within the UK. But does anyone believe that is a stable solution?

As we enter (at the time of writing) into the post-Brexit phase of the saga, the imbalance of power is even more transparent. It may be worth repeating again that, unlike a real-life divorce, these two one-time spouses do not have the luxury of just walking away and never seeing each other again if they so wish. They will need each other economically and geo-strategically in the future. The rhetoric is not promising.

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Kieran Bradley says

April 20, 2020

This post reminds me of the cartoon which was circulating around the middle of March. A couple slouch in front of the TV, ‘Coronavirus Latest’ in large letters on the screen, newspapers with headlines on ‘Coved-19’, ‘Are masks useful?’ and ‘Panic buying - Latest’ strewn all over the floor; he says to her ‘God I miss Brexit’.

Professor Weiler, as always, provides much food for thought, as well as some distraction (even though the word ‘virus’ appears twice). I would take issue with just two points.

The first concerns the feeling of ‘good riddance’ to the United Kingdom (not ‘Great Britain’, please; that would really have stirred things up!) on the part of European Union or its politicians. Having spent some time behind those closed doors in Brussels, on only one occasion did I hear a senior figure agree with the ‘De Gaulle was right after all’ line. That was said in a private capacity, in December 2016, and reflected the general frustration that six months on from the referendum, the United Kingdom government had not been able to notify its intention to withdraw from the Union. In their professional capacity, that same person went out of their way in due course to keep the United Kingdom in the Union. Moreover, even if uttered behind closed doors, there are no secrets in Brussels, and it seems unlikely that no Faragiste politician would have got wind of any such expression of anti-United Kingdom feeling, and exploited it to say, ‘look, we were right to leave, they don’t want us anyway!’. British exceptionalism is a particularly British narrative.

The only Google evidence of such a sentiment is in the parting words of the Croatian Ambassador Irena Andrassy to Tim Barrow at the last Coreper meeting he attended at the end of January, where she said ‘ Thank you, goodbye and good riddance’. She apparently thought this meant ‘good luck’, but it stands as a telling metaphor of a certain lack of understanding, rather than hostility, on the part of the Union as regards our British friends, and of the Union’s bending over backwards to accommodate that most English of qualities, the United Kingdom’s ‘awkwardness’. Yes, there is relief, not that it is the United Kingdom which has gone, but that Brexit, or at least its formal withdrawal from the Union, is over. It is for this reason, and not because large numbers of Remainers had been won over to the Brexit cause, that Johnson’s slogan ‘Get Brexit done’ was so successful in the December elections. It would have been hard for anyone living in the United Kingdom over the last four years to deny the attractiveness of the second, implicit, part of the slogan, ‘and let’s get on with the rest of our lives’.

The notions that in the negotiations ‘the inequality of arms strikingly favoured the Union’ (‘Kinder, Gentler Brexit’, February 2017), or that the Union was in a position to ‘play it tough’, also require some qualification. The Union is less of a Rottweiler and more of a St Bernard; it is a large impassive beast, which does not really do disappointment, or bitterness, or vindictiveness, while the United Kingdom sees itself (naturally, and here perception is all) as a bulldog, ready, if not always able, to stand up to the predations of any larger canine. Punitive action against the United Kingdom by the Union in the withdrawal negotiations, for example, might have favoured the interests of some Member States, but inevitably would have harmed those of other Member States. What the Union can agree on is the defence of its own interests and those of its Member States collectively (mediated by the Commission), their citizens and their businesses, as the European Council declared in their guidelines of 29 April 2017. Certainly numerous national politicians used the Union, and purported to speak on its behalf, in their tough-talking rhetoric for domestic consumption; but that is hardly new.

The European Union needed an orderly withdrawal a great deal more than the United Kingdom did; not just for the money, or the rights of its citizens who had in good faith moved to the United Kingdom (where the referendum had been fought largely, and often very bitterly, on the question of immigration from the Union), but also to defend Ireland (read: all small and medium-sized Member States), and to prevent the recurrence of civil war in Union territory. The British political community seems to have been blissfully unaware prior to the referendum that Brexit would have any implications of note for the border or the application of the Belfast/Good Friday Agreement, or potentially devastating effects for the economies of Ireland or Northern Ireland; the excellent report of the Lords’ European Union committee on this subject was only published in December 2016 ( https://publications.parliament.uk/pa/ld201617/ldselect/ldeucom/76/76.pdf). Moreover, the May government was all along beholden to a political party, the DUP, which did not represent the views of the majority of voters in Northern Ireland on the Brexit question, and whose House of Commons leader was ousted at the first opportunity; hardly an ideal position from which to make serene policy choices on a highly sensitive matter.

So even if the current Ireland Protocol is not ideal, the Union was glad to accept, after almost two years of discussion - mainly between actors on the United Kingdom side - a proposal made formally by the (new) United Kingdom government, and ratified by democratic process two months later in national elections. After all the (wasted) time, the Union too wanted to get on with the rest of its life, and a no-deal Brexit was not yet off the table. If that is ‘playing it tough’, then arguably the Union had no choice, or at least no more rational choice.