Brexit and the waning days of the United Kingdom

[The Brain]

They've got the money, too! Thanks to Brexit.

[Syt]

Yesterday's Express was also nice. "The EU just don't get it!"

[The Brain]

According to British thinking having agreements reduce sovereignty. I'm shocked that a tabloid thinks a no-deal reduces sovereignty.

[Richard Hakluyt]

Needless to say that the RN has an inadequate number of ships suitable for the task. During EU times I assume we pooled resources with the other North Sea nations and the principal task was probably making sure that the Russians were not helping themselves to the fish. The task is now much bigger. There will only be one ship active in the Channel at any one time for example; a problem if there are disputes in both Cornwall and Kent at the same time. Meanwhile no ships are available for the northern waters which will have the Scots in a skirling uproar 

[Tamas]

Needless to say that the RN has an inadequate number of ships suitable for the task. During EU times I assume we pooled resources with the other North Sea nations and the principal task was probably making sure that the Russians were not helping themselves to the fish. The task is now much bigger. There will only be one ship active in the Channel at any one time for example; a problem if there are disputes in both Cornwall and Kent at the same time. Meanwhile no ships are available for the northern waters which will have the Scots in a skirling uproar 

That's ok they can just go independent and afford their own navy.

[Sheilbh]

Needless to say that the RN has an inadequate number of ships suitable for the task. During EU times I assume we pooled resources with the other North Sea nations and the principal task was probably making sure that the Russians were not helping themselves to the fish. The task is now much bigger. There will only be one ship active in the Channel at any one time for example; a problem if there are disputes in both Cornwall and Kent at the same time. Meanwhile no ships are available for the northern waters which will have the Scots in a skirling uproar 

Yeah there are only two ships for this as you say. In the EU times there was no need to patrol the waters because there was always a deal negotiated annually with Norway (this is currently in doubt for the EU and the UK because apparently both sides decided that they'd finish their negotiations before speaking to the Norwegians, there's still time to fix that but as of now Norway have said their waters will be closed to the UK and the EU as of 1 January because they don't have a deal for next year's access ). So in terms of fishing rights there's no real issue - NATO vessels do patrol against the Russians and actually this is where the Franco-British bilateral defence treaties kick in because more than once French ships have escorted Russian ships away from UK waters. Obviously the NATO and the bilateral agreements carry on.

But the ships we're using on this won't be available for that as the Tory chair of the foreign policy select committe Tom Tugendhat put it:

Alternative uses for scarce @RoyalNavy resources include:

1. Deterring Russian submarines
2. Preventing human trafficking
3. Protecting undersea cables
4. Supporting allies under threat
5. Projecting diplomatic influence

As ever it feels like the real lesson of the last few years is the lack of state capacity in Britain.

[Sheilbh]

So I found this thread by David Henig very interesting on the recent origin/background of LPF terms in EU deals:

David Henig
@DavidHenigUK
Dec 11
As promised, a little story. Of how the EU ask of the UK on the level playing field is indeed new, how that came about, and why we should have been able to deal with this a lot better. And how, indirectly, David Frost is one of the reasons. Beware, contains analysis... 1/
Let us go back 5 years to the height of Transatlantic Trade and Investment Partnership (TTIP) discussions. As you may recall, by 2015 TTIP was about as popular in the EU as allegedly the EU is these days in the red wall. What, thought the EU and Member States, could be done? 2/
TTIP will be more popular, declared more than one insider, if we show there are tough labour and environment protections against undercutting by the nefarious and probably untrustworthy US. That, optimistically they said, will get NGOs on side. 3/
But there was a problem with EU level playing field provisions in 2015. The unit of DG Trade responsible absolutely did not believe anything should be enforceable. Pages of loose commitments, fine. Add more! But apparently enforcement was best done through a good chat. 4/
Now such soft-touch EU enforcement of level playing fields was probably designed particularly for developing countries, where sanctions were seen as unfairly penalising struggling business and individuals for the actions of a terrible government. Not the US. 5/
To make it worse for the EU their level playing field conditions were so weak there was a real chance that they would breach US red lines. The US, under a bipartisan agreement, having agreed that minimum labour and environment conditions should be enforceable in their FTAs. 6/
Fortunately at least for this bit of the EU, TTIP talks ended in 2016 before the embarrassment of having weaker level playing field conditions than the US became widespread. But the traditional EU approach was clearly not sustainable. Rethink time. 7/
So from 2016 to 2019 there was a lot of discussion about stronger EU level playing field provisions. These were given added impetus by the long awaited conclusion in 2019 of EU-Mercosur trade talks, with great concerns over Amazon deforestation. 8/
EU political parties, particularly the Greens and Socialists & Democrats (Labour equivalent) started to demand much stronger level playing field provisions, and this was reflected in a Commission programme from 2020 that included a new Chief Trade Enforcement Officer. 9/
So who was the next country in line for the EU's new tough level playing field conditions? It just so happens that will be the UK. Perfect testbed, like the US a bit untrusted on the deregulation front. Only problem, the EU doesn't have a set text for this... 10/
Enter the UK. Saying, we want Canada text on level playing field. Tin eared doesn't even begin to cover it. The EU has just gone through a five year process to change position and the UK wants to ignore it. As a negotiating start, perhaps. As a realistic endpoint, no chance. 11/
But note, there was no EU text precedent. Hence the first EU level playing field proposal contained non regression and a ratchet, but fudged enforcement, by suggesting implausibly, the establishment of new domestic bodies. 12/
So you have a choice as the UK. Do you engage with the clear EU direction of travel, reckoning you can shape their not fully formed thoughts in an acceptable way? Or stick with a minimalist position and declare this a red line? Wll reader, I think we can guess the answer... 13/
But let us finish by going back in time to the start of the story, of the optimism of TTIP talks that would transform EU-US relations. The head of UK trade pushing hard for the agreement that would years later lead to UK-EU stalemate was of course David Frost... 14/
So yes the EU ask on level playing field is unprecedented. But it has been coming for some years. The UK should have been aware of the issue in March, including the lack of EU fully formed thoughts. Something went wrong. 15/
We don't know whether the EU kept changing their mind on how to implement Level Playing Field - probably. We don't know if the UK failed to take it seriously and stuck to an unrealistic position - probably. But a solution should be possible, and the UK spin unhelpful. 16/ end

Also I totally agree with this which is partly about Brexit but more importantly about the weird opacity of trade negotiations - which I agree I think is likely to breed mistrust:

Alan Beattie
@alanbeattie
Dec 11
The chart-topping band of @ChrisGiles_ @jimbrunsden (me on drums) have a piece up about the Brexit level playing field stand-off. But here's the thing: the opacity surrounding these (as so many) trade talks is making things much worse. Quick Thread
(1/n)
One of the things that struck me talking to experts about this was a lot of hedging about "this is what I think the EU means" and "this is what the UK appears to believe". There's lots of jargon (non-regression, ratchet, equivalence etc) capable of multiple meanings. (2/n)
And even if the negotiators have been clear with each other about what they mean, they certainly aren't being transparent with their domestic constituencies: the EU member states and Westminster MPs aren't being given full details about exactly what's being proposed. (3/n)
There's an unhelpful culture of secrecy around almost all trade talks. Few texts are released along the way. The standard reason is so not to give away negotiating positions to the other side. This is, to use a technical WTO term, obvious bollocks. (4/n)
If you're not telling the other side what you're proposing, you aren't negotiating, are you? Duh. The function of secrecy is actually to hide from the public what's going on. But how are you supposed to build domestic consensus around a proposal no-one can see? (5/n)
On Monday I wrote about the possibility of rational failure in the talks. It's quite possible eg Boris Johnson is failing to tell the British public about what UK & EU are really proposing because he wants no-deal. OK, that's his choice. He's PM.  (6/n)
But it's also possible that a feasible landing zone is missed because both sides are genuinely unaware what their domestic constituencies (France, the ERG) will accept. (7/n)
And unless you drag these proposals into daylight and let us all work out exactly what we are talking about, the chance for mishap will increase. Might it mean the talks immediately die, as there clearly is no chance of the red lines intersecting? Maybe. (8/n)
But at this rate, unless this whole stand-off is carefully choreographed (a real possibility btw) they're heading for failure anyway. Might as well give transparency a go. When all else fails, try telling the truth. You never know, it might work. (9/9)

And it feels like no deal is more likely but it also feels like all the stuff happening at the minute is how you'd choreograph a deal, or what would be happening before imminent collapse

[Duque de Bragança]

Yeah there are only two ships for this as you say. In the EU times there was no need to patrol the waters because there was always a deal negotiated annually with Norway (this is currently in doubt for the EU and the UK because apparently both sides decided that they'd finish their negotiations before speaking to the Norwegians, there's still time to fix that but as of now Norway have said their waters will be closed to the UK and the EU as of 1 January because they don't have a deal for next year's access ). So in terms of fishing rights there's no real issue - NATO vessels do patrol against the Russians and actually this is where the Franco-British bilateral defence treaties kick in because more than once French ships have escorted Russian ships away from UK waters. Obviously the NATO and the bilateral agreements carry on.

NATO and bilateral agreements will be even more important. Possibly broadened discreetly when the dust has settled.
Norwegian waters closed for EU fishermen? I guess Norwegian cod prices are going to rise.

[Valmy]

NATO and bilateral agreements? I thought the British valued their freedom but I see they have ceded control to NATO and bilateral partners.

[Sheilbh]

Needless to say that the RN has an inadequate number of ships suitable for the task. During EU times I assume we pooled resources with the other North Sea nations and the principal task was probably making sure that the Russians were not helping themselves to the fish. The task is now much bigger. There will only be one ship active in the Channel at any one time for example; a problem if there are disputes in both Cornwall and Kent at the same time. Meanwhile no ships are available for the northern waters which will have the Scots in a skirling uproar 

Incidentally thinking about this again this would be another issue in the event of independence

I remember reading something in the last few years and I can't think of the details but basically it was about the frustration of Northern (English) fishermen about Scottish trawlers from Peterhead and Fraserburgh going as far south as Scarborough. The main complaint was that they weren't actually competing. From memory Scots fishers are mainly focused on squid and shellfish (largely exported to countries like Spain and Greece), while the English fishermen were out for white and oily fish. The issue was something like either the trawlers were hoovering up lots of other fish as a by product or the way they dealt with their waste was disrupting the English fishermen's catch. So we have that row to look forward too

NATO and bilateral agreements? I thought the British valued their freedom but I see they have ceded control to NATO and bilateral partners.

There's a huge difference between the EU and bilateral agreements or even NATO. It is a legal order. I have direct rights as an individual under EU law - no-one has UN or NATO rights, it's between states.

[Zanza]

You are moving goalposts. It was always about the sovereignty of the UK, not about individual rights. The treaties of Rome, Maastricht and Lisbon were entered just as freely by the British government as the North Atlantic Treaty (or the WTO treaty or any other treaty Britain signed). All of them create obligations for Britain. Arguably regulating banana bendiness in the EU treaties is a smaller infringement of British sovereignty than Article 5 of the NATO treaty, which commits Britain to war against a nuclear armed Russia in certain situations.

[Sheilbh]

You are moving goalposts. It was always about the sovereignty of the UK, not about individual rights. The treaties of Rome, Maastricht and Lisbon were entered just as freely by the British government as the North Atlantic Treaty (or the WTO treaty or any other treaty Britain signed). All of them create obligations for Britain. Arguably regulating banana bendiness in the EU treaties is a smaller infringement of British sovereignty than Article 5 of the NATO treaty, which commits Britain to war against a nuclear armed Russia in certain situations.

I'm not. My point is for the sovereignty people the issue isn't whether the UK can enter into treaties that create obligations. That's not the issue they're raising and it's sort of disingenuous to say "oh but the UK is still a member of treaty organisations". Because that's not their issue.

Their problem is the EU as a legal order. The sovereignty argument about the EU only starts in the early 90s with Maastricht (so the move from EEC to EU) and with the Factortame cases which are totemic. They're the cases where the courts decide they have to overrule Parliament if it is necessary to give effect to European law and they have to do that despite constitutionally not having that power. For a country where the traditional constitutional order is based on parliamentary sovereignty - that's quite explosive. It's also around this time that Labour moves from an anti-EU party to a pro-EU party and the Tories more or less swap.

And incidentally on the treaties I would note that Wilson had a referendum in 76 and for him that was actually more about validating the UK's entry into the Common Market, because he thought it was too significant a change to be made in the traditional way in the UK (by a government, through the Commons, with a small majority). The Maastricht treaty launched the Referendum Party which was the first sort of challenge to the Tories from the right and was single issue that there should be a vote on Maastricht. And Lisbon is I think key in understanding how we got to Brexit because in 2005 all the major parties (Labour, Tories, Lib Dems, SNP) had a manifesto pledge to have a referendum on the European Constitution. Once that got knocked out by the Netherlands and France and was re-worked into Lisbon, Brown basically decided it didn't need a referendum any more and Cameron in 2010 decided we couldn't have one retrospectively. But all through our membership of the EU there's been a strong view in our politics that European treaties aren't like other treaties they are more than that, so there's always at least one part of politics saying that this needs validation by the electorate it's not something that government, especially with a small majority, should push through the Commons on a whipped vote alone.

[Tamas]

The sovereignty argument about the EU only starts in the early 90s with Maastricht (so the move from EEC to EU) and with the Factortame cases which are totemic.

Yes, but, wasn't there already a big debate in the UK in the 70s whether to join the EEC at all?

[Sheilbh]

Yes, but, wasn't there already a big debate in the UK in the 70s whether to join the EEC at all?

That's fair. I suppose I mean the contemporary sovereignty argument which is primarily right-wing, in the Tory Party and obsessed with the CJEU.

Incidentally, this is partly why I don't think Brexit is "imperialist" even though that's the easy, left British argument. Not least because I don't think Britain is more "imperial" or nostalgic for empire now than it was in 1963 (when MacMillan tried to join), 1973 (when we joined) or 1976 (when we had a referendum). I think Brexit voters overwhelmingly were nationalist not imperialist. I've said before but the great imperial cities voted remain and it was a repeated argument through the campaign to back "Great Britain not Little England" - which now and historically is an imperial v national framing. I think even Brexit leaders aren't motivated by imperial nostalgia it's Maggie nostalgia - they were all young men, often young conservatives in the 80s at Oxford as Maggie, Reagan and JPII seemed to channel a sort of conservative revolution in the West.

But you're right there was an argument over sovereignty in the 60s and 70s, but I think it was slightly different because it was primarily a left-wing argument with a few eccentric Tories in support. In a way it was the opposite of the modern sovereignty argument. It was focused on the fact that, in their view, the EEC would stop the UK from implementing socialism and basically a planned economy. For example there's a great debate between two Labour cabinet ministers about this between Tony Benn who's became a national treasure () and Roy Jenkins (who is an absolute hero of mine):
https://www.youtube.com/watch?v=_zBFh6bpcMo
The section from about 2 minutes in to about 12 minutes in for the debate about sovereignty. It is still very, very similar to the debate we had four years ago. But it shifted from Benn's sort of Leveller/Digger radical democratic tradition that was focused on the Commission to the Tories who are far more focused on the CJEU/ECJ.

I also looked up the 1983 Labour manifesto on withdrawing the Common Market and it is uncanny

Britain and the Common Market

Geography and history determine that Britain is part of Europe, and Labour wants to see Europe safe and prosperous. But the European Economic Community, which does not even include the whole of Western Europe, was never devised to suit us, and our experience as a member of it has made it more difficult for us to deal with our economic and industrial problems. It has sometimes weakened our ability to achieve the objectives of Labour's international policy.

The next Labour government, committed to radical, socialist policies for reviving the British economy, is bound to find continued membership a most serious obstacle to the fulfilment of those policies. In particular the rules of the Treaty of Rome are bound to conflict with our strategy for economic growth and full employment, our proposals on industrial policy and for increasing trade, and our need to restore exchange controls and to regulate direct overseas investment. Moreover, by preventing us from buying food from the best sources of world supply, they would run counter to our plans to control prices and inflation.

For all these reasons, British withdrawal from the Community is the right policy for Britain - to be completed well within the lifetime of the parliament. That is our commitment. But we are also committed to bring about withdrawal in an amicable and orderly way, so that we do not prejudice employment or the prospect of increased political and economic co-operation with the whole of Europe.

We emphasise that our decision to bring about withdrawal in no sense represents any weakening of our commitment to internationalism and international co operation. We are not 'withdrawing from Europe'. We are seeking to extricate ourselves from the Treaty of Rome and other Community treaties which place political burdens on Britain. Indeed, we believe our withdrawal will allow us to pursue a more dynamic and positive international policy - one which recognises the true political and geographical spread of international problems and interests. We will also seek agreement with other European governments - both in the EEC and outside - on a common strategy for economic expansion.

The process of withdrawal

On taking office we will open preliminary negotiations with the other EEC member states to establish a timetable for withdrawal; and we will publish the results of these negotiations in a White Paper. In addition, as soon as possible after the House assembles, we will introduce a Repeal Bill: first, in order to amend the 1972 European Communities Act, ending the powers of the Community in the UK; and second, to provide the necessary powers to repeal the 1972 Act, when the negotiations on withdrawal are completed.

Following the publication of the White Paper, we will begin the main negotiations on withdrawal. Later, when appropriate and in the same parliament, we will use our powers to repeal the 1972 Act and abrogate the Treaty of Accession - thus breaking all of our formal links with the Community. Britain will at this point withdraw from the Council of Ministers and from the European Parliament.

There will need to be a period of transition, to ensure a minimum of disruption - and to phase in any new agreements we might make with the Community. This will enable us to make all the necessary changes in our domestic legislation. Until these changes in UK law have taken place, the status quo as regards particular items of EEC legislation will remain. And this period will, of course, extend beyond the date when we cease, formally, to be members.

[Zanza]

The traditional British constitutional order is not parliamentary sovereignity, but parliamentary supremacy. There were always other branches of sovereign power, specifically royal prerogatives and the judiciary, which operates not due to a parliamentary act, but derives its power directly from the crown as well.

The idea that conflicts between these branches are something specific to the British system is just English exceptionalism. They occur in all European Union member states. Except the rest of the EU - maybe except Hungary and Poland - has come to terms with the postwar international order, which is arguably most evolved in form of the EU. Not that other international treaties do not establish obligations that also bind domestic courts, but obviously not in the same extent. So the loss of power for national parliaments and national courts enforcing international legal orders is something that is just part of the 21st century.

Anyway, it is suprising that there even is such a conflict between constituional branches in Britain as at other times, the British claim to have this flexible unwritten constitutional order based as much on statutes as on tradition. One could think that after several decades, a new distribution of power between courts and parliament would become part of that tradition. But in the end, parliament showed it was always supreme and revoked the EEC act.

What is noticable is that the fight against the EU is actually just a fig leaf for the "sovereignists". They are actually authoritarians who want to limit restrictions on the executive - from EU, from the British judiciary, the devolved adminstrations and even the British parliament. Their actions speek for themselves, be it proroguing parliament, questioning court authority, ignoring devolved administrations or rushing through extremely complex acts through parliament. Pretending it is about sovereignity from foreign influence just hides their domestic actions.