A week ago the consensus was that this week’s talks in London were set up for another round of grinding stand-off, but in the event the British government has precipitated a full-blown confrontation with Brussels.
The decision to use the UK internal market bill to drive a coach and horses through the Northern Ireland protocol really could not have been more provocative. The question now is what it really means — and whether there is a way back to a deal from here.
On the first point, those who cannot bring themselves to believe that Boris Johnson is serious about accepting a “no-deal” outcome — and that includes many European diplomats and officials — assume that there must be a game being played here.
They recall the decision to prorogue parliament last year and hazard that by publishing a bill that so egregiously traduces the UK obligations under the Northern Irish protocol, Mr Johnson is really just trying to get EU leaders’ attention. It is not yet law, after all.
Combine this with the hasty publication yesterday of an outline for plans for the UK’s state aid regime (one totally independent of Brussels) and this could be seen as a final UK ultimatum: trim back the Irish protocol and give us a zero-tariff, Canada-style free-trade agreement, with a unilateral UK state aid regime . . . or else we walk away on our terms.
On a very optimistic view, the EU has been demanding the UK set out its subsidy control plans for months, and yesterday’s paper did at least start that process — even if it did so by setting out a very hard line on a unilateral, World Trade Organization-based regime that could not be accepted by Michel Barnier on his current mandate.
The paper contained one chink of light by noting that, notwithstanding this WTO-based regime, the UK will “adhere to any international obligations on subsidies agreed under future free trade agreements”.
But that promise itself brings you slap up against the problem caused by the internal market bill furore. Given the UK’s brazen move to breach international law on the withdrawal agreement, how can the EU believe the UK will “adhere” to anything?
It is important to understand — because the European Commission lawyers surely do — just how far the UK internal market bill goes in stripping out the UK’s obligations under the withdrawal agreement. The bill takes the hardest line imaginable.
The breaches under the treaty are not, as the Northern Ireland minister Brandon Lewis promised “limited and specific”, but (as legal experts explain here) broad and sweeping — and they are not legally contingent on there being a “no-deal” outcome either.
The message is that a fully “sovereign” Brexit of the kind Mr Johnson apparently seeks is fundamentally incompatible with the Northern Irish protocol — both on state aid and on the level of customs checks on the new border in the Irish Sea.
On state aid, this is because Article 10 of the protocol would leave the UK government obliged to notify Brussels about state aid decisions in Great Britain that affected Northern Ireland or — if it failed to do so — open to legal challenge in UK courts that would refer cases upwards in the European Court of Justice.
Clean-break Brexiters in the Tory party find this wholly unacceptable, and the legislation — which wholly excises this obligation — is a clear political statement that Mr Johnson agrees with them. Taking that statement back as part of an 11th-hour compromise will not be easy.
Perhaps it is still not too late for Mr Johnson to step back from this precipice. The EU, as always, will not be the ones to walk away from the table and with seven weeks to go (recalling last October’s Johnson U-turn) no one in Brussels or Berlin is racing to pull the plug.
But landing zones are increasingly difficult to see. Even if the big gambit worked and Brussels did cave in and agree a Canada-style FTA with the UK having a discrete state aid regime (and the EU taking refuge in a strong unilateral sanctions mechanism) the issue of the protocol would remain unresolved.
Which is to say, politically even a “win” for Mr Johnson in the FTA negotiation (highly unlikely at this point) does not fully reclaim UK sovereignty unless Article 10 of the protocol on state aid is also addressed — and the EU is thus far adamant that it will not rewrite the treaty it has already agreed. That would be caving to blackmail.
In short, the risk is that having so dramatically played the sovereignty card, any remotely foreseeable deal is now politically toxic to Mr Johnson since, without “fixing” the protocol, the UK will not, in reality, be sovereign.
Anyone who has followed Brexit will be wary of definitive predictions, but if we have reached a point where Mr Johnson feels a no deal (forced on him by Brussels) is better than a bad deal that he has done himself (and still brings friction at the border and an impingement on sovereignty via the Northern Ireland protocol) then the no-deal die is surely cast.
Brexit by numbers
As the risks of a non-negotiated exit this January rise, all of the concerns that have been raised by transport and logistics groups in recent months can be expected to be amplified further in the coming weeks and months.
Without a deal, any hope of facilitations to reduce frictions at the border will fall by the wayside, bringing back familiar concerns about shortages of freight forwarders and other specialists, such as vets who — for example — must sign export health certificates for all animal and plant products.
A 2018 survey by the British Veterinary Association of members found that more than 80 per cent of respondents expressed concerns about the lack of capacity of vets needed for certification. The BVA leadership tells me those concerns have not gone away.
This week the Commons committee on the Future Relationship with the European Union heard from three logistics specialists who warned of serious certification bottlenecks. You can tune in here — it does not make for comfortable listening.
The UK has 23,000 vets, of which about 1,200 are official veterinarians (OVs) authorised to apply the “wet stamp” that is needed on EHCs, which will cost £200 to £900 each, according to the CBI.
That’s a rise of 600 OVs from 2019, but that’s still not likely to be enough to address the projected “325%” rise in EHC certificates in a no-deal scenario, according to the BVA.
The government has started a programme to create helpers for OVs — so-called certification support officers — but the Department for Environment, Food and Rural Affairs tells me there are only “more than 100” of those, which doesn’t sound like a lot in a no-deal world.
Get alerts on Brexit when a new story is published