Article 50, Brexit, British Government, Irish border, Northern Ireland, Theresa May

May: I Am Where I Am Because I Put Me Where I Am #Brexit

This Blogpost was written on Sat March 3rd, 2018

may snowIn the cold light of a snowy Saturday morning, UK Prime Minister Theresa May’s Mansion House speech yesterday can be read as an anguished plea to the European Union to help her out of the impossible position she has put herself in.

She knows the road she has chosen will result in the UK being economically less well off than it otherwise would have been, not to mention the loss of European and wider geopolitical influence.  But she is trapped.

Where Mrs. May finds herself is the consequence of decisions she herself has made. No one else. She now asks the EU to help her evade the consequences of those decisions by tearing up its own rules and laws, asking it to agree that the UK can be, at the same time in and out of the single market and the customs union, allowing it to pick the bits its likes and reject the bits it doesn’t.

It is not going to happen. As Guys Verhofstadt, former Belgium prime minister and now the lead for the European Parliament on Brexit, put it:

“The UK Government must understand that the EU is a rules based organisation, as there is little appetite to renegotiate the rules of the single market to satisfy a compromise crafted to placate a divided Conservative party. “

It is doubtful that matters would be any different under a Labour government. It is difficult to find any real divergence between what Mr Corbyn’s Labour wants and what Mrs. May wants. Corbyn talks about “a” customs union between the UK and the EU on terms the EU would never accept. She talks about a “customs partnership”. Difficult to find any other difference between them. All of which means that the UK will leave the EU on Match 29th, 2019. Thereafter, it is just damage limitation.

Mrs. May has made four fundamental errors that has got her where she is today:

  1. She bought into the concept that the referendum result was the mystic will of the people, that could never be challenged or reversed;
  2. She interpreted Brexit in the most extreme fashion possible, cutting off choices before they even fully considered;
  3. Although she had a majority in the House of Commons she called an unnecessary election to win a crushing majority but came back as a dependent minority government, reliant on the votes of others to stay in power;
  4. She has at all times fundamentally misunderstood the nature of the European Union and how it saw Brexit. As a result, the withdraw process has been ineptly handled from the start.

Individually, any of these errors would have seriously damaged the process. Taken together, they have fatally undermined it.

The UK voted, narrowly, on June 23, 2016, to leave the EU. The result was 52% to leave, 48% to stay. The 52% represented just 37% of the electorate, with many British living abroad excluded from the vote, as were 16 and 17 year olds. Despite the narrowness of the result Brexiters immediate declared it to be the “will of the people”, a sacred decision beyond question. Theresa May accepted this framing. Those who questioned the decision were branded as traitors and as the enemies of the people. Politics became poisonous. They remain so.

But, of course, there is no such thing as the “will of the people”. Because there is no “people”.

In a democracy all there is are the individuals and groups who make particular decisions through the ballot box on a particular day for reasons best known to themselves. What marks a democracy out from a dictatorship is the ability of those on the losing side of an election to challenge the decision and to argue for its reversal. This is especially so as new facts emerge or the consequences of a decision become clearer.

But if, as May did, you buy into the “will of the people narrative” you close off your ability to suggest that the “people” might be wise to think again. At the recent Munich security conference ,in response to the conference director Wolfgang Ischinger’s comment that “things would be so much easier if you stayed,” May said: “We are leaving the EU and there is no question of a second referendum or going back and I think that’s important.

“People in the UK feel very strongly that if we take a decision, then governments should not turn around and say, ‘no, you got that wrong’.”

Strange, I always thought that one of the hallmarks of leadership was just that: saying to colleagues and voters, “I think we might have got this wrong”.

Not content with buying into the “will of the people” mystique, the prime minister then chose to interpret Brexit in the hardest fashion possible. A le Paul Simon, there may be more than 50 ways to leave the EU but Mrs. May decided that Brexit meant leaving completely, quitting the single market and customs union as well as the political structures.

She now finds herself having to admit that “the reality is that we all need to face up to some hard facts. We are leaving the single market.  Life is going to be different. In certain ways, our access to each other’s markets will be less than it is now.” Decoded: we will be poorer because of a decision that I have made. And it will also mean a hard border between Northern Ireland and Ireland because that is the inevitable consequence of leaving the single market and the customs union, commitments to the contrary made by her last December notwithstanding.

To deliver the “will of the people” through the hardest of hard Brexits Mrs. May decided that her workable majority of twelve seats wasn’t enough. She decided to call a general election. She lost, and came back eight seats short of an overall majority. To stay in power, she did a deal with the Protestant Democratic Unionist Party from Northern Ireland, which further limited her choices on how to deal with border issues in Ireland.

The parliamentary numbers also gave increased leverage to the European Research Group (ERG) within the Conservative Party, a grouping of Brexit ultras. American readers can think Freedom Caucus. Their drive to leave the EU completely, cutting all ties save for trade on World Trade Organization terms, also constrains the prime minister in trying to map a way forward.

But perhaps the biggest problem that the prime minister has is that she, like nearly all of the UK political class and commentariat, simply does not understand the European Union and how it works.

To repeat the Verhofstadt quote, the EU “…is a rules based organisation, as there is little appetite to renegotiate the rules of the single market to satisfy a compromise crafted to placate a divided Conservative party. “

Save for the UK, all other members of the EU are used to working within the framework of a written constitution which spell out powers, processes and procedures that must be followed. As a union of 28 member states the EU itself needs similar rules, elaborated in a series of Treaties, culminating in the Lisbon Treaty. It is complex and difficult to changes rules based on Treaties.

To say that UK politicians can “make-up” their Constitution as they go along may be an overstatement, but one that contains a good deal of truth. Everything can be negotiated or reconfigured as required. Look at the constitutional issues that have arisen in connection with the EU Withdrawal Bill as an example. UK politicians have never understood why the EU did not have the same flexibility.

The UK sees the Brexit process as a negotiation between equals. As Mrs. May said yesterday: “… we (the EU and UK) both need to face the fact that this is a negotiation and neither of us can have exactly what we want.” Back in November, David Davis, the Brexit Secretary, put it this way:

It’s always in a negotiation you want the other side to compromise. I want them to compromise. Surprise, surprise, nothing comes for nothing in this world.

So, the UK’s approach has been: “Here’s our opening position. We haven’t put a lot of work or preparation into it but it plays well with our Eurosceptic newspapers. What’s your position? Can we meet halfway on this so that we can say we have “beaten” Brussel?”.

The EU does not see the process that way. It sees the UK as leaving. The terms under which it leaves is not a matter to be negotiated. It is a matter of the UK honouring commitments and accepting obligations it assumed as a member. So, in the Article 50 discussion in 2017 all the EU asked of the UK was that it honour the commitments it had made to EU citizens who had moved to the UK on the assumption that they had certain rights and entitlements.

Further, it asked the UK to pay what it had agreed to pay while a member, even if those payments stretched into the future. Similarly, the commitment to avoid reintroducing a border in Ireland arose out of commitments made in the Good Friday Agreement, which assumed that both parts of the island were members of the EU’s integrated internal market, making a border unnecessary.

Looking back, difficult to see any “negotiations” of the type described by Davis. The Withdrawal Treaty published this week by the EU Commission applies the same logic. Disputes over commitments made within the framework of the EU Treaties should be settled by the EU Court, not some ad-hoc third-party arbitrator.

Which bring us back to May’s speech yesterday. Read it carefully. It is an admission that leaving the EU, the single market and the customs union will be damaging to the UK. But is has to happen because the “people” voted for it. But, May asks the EU, can we leave in such a way that we can say we are out, but without really being out. In areas like automotive, chemicals, pharmaceuticals and aviation we’ll follow all the rules and stay in all the agencies. And pay to do so.

When it comes to EU agencies, can our guys continue to have a seat at the table and play an active role? For example, May said that as regards data protection and data transfers: “That is why we will be seeking more than just an adequacy arrangement and want to see an appropriate ongoing role for the UK’s Information Commissioner’s Office. This will ensure UK businesses are effectively represented under the EU’s new ‘one stop shop’ mechanism for resolving data protection disputes.”

But we want to do all of this on our terms. We’ll follow the rules, but we want to be free to change them anytime we want. We’ll nod to the European Court, but it will be our courts that decide. In some areas, such as agriculture and fisheries, we will be outside completely.

On top of all of that we want special mechanisms to handle all the disputes that will inevitably arise as a result of us being half in and half out.

In other words, Mrs. May said, can we please have all of the benefits that we now have while at the same time being free to do what we like, when we like. That way, I’ll be able to say that I honoured the “will of the people” to leave the EU while mitigating the damage that would otherwise follow. Can you please make all these exceptions to your rules for us because, after all, we are the UK and we are exceptional. It will also allow me to escape the folly of the political choices I have made, and I can survive as prime minister.

Reacting to what Mrs. May has asked for, Manfred Weber, leader of the largest party in the European Parliament, the centre-right European Peoples Party, and a key ally of the German chancellor, Angela Merkel, said: “After what I have heard today I am even more concerned. I don’t see how we could reach an agreement on Brexit if the UK government continues to bury its head in the sand like this.” In other words: No.

Keep in mind that Mrs. May speech yesterday refers to what she would like to see in place when the UK is finally out of the EU. While that should be March 29th, 2019, the UK has asked for a transition period of “about” two years after that so that it can organise to leave and negotiate the agreement Mrs. May talked about yesterday. If the transition is agreed then nothing will change until the transition ends.

The terms of the transition should be agreed by the end of this month. But such is the state of play, I would not bet on anything.

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