This blog was written on May 21 2018
Between 1946 and 1951, BBC radio aired a popular thriller, Dick Barton – Special Agent. The serial followed the adventures of ex-Commando Captain Richard Barton who, with his mates Jock Anderson and Snowy White, solved all sorts of crimes, escaped from dangerous situations, and saved Britain from disaster time and again.
It gave rise to a popular catchphrase of the late 1940s “With one bound Dick was free!” No matter how dangerous the cliffhanging situation Dick found himself in at the end of each episode, he would always escape by the easiest and most completely implausible method, ready to face danger yet again.
It seems that the UK government believes that it has found a “Dick Barton” escape from the troubles by which it is beset on all sides by Brexit.
Consider the situation with which it is faced. Time is running out, with weeks to the June summit of EU leaders, 5 months to October when the Withdrawal Agreement is to be finalised and less than a year to March 29th, 2019, when the UK is due to leave the European Union.
On the one side are many MPs, of all parties, with the support of the business community and the TUC, who want trade with the EU to continue after Brexit much as today, which means staying in the Customs Union and the Single Market, in fact if not in name. On the other side are the hard Brexiteers, who believe in the “manifest destiny” of the UK outside the EU, irrespective of the economic price to be paid, as we noted here.
Then there are the commitments given by the prime minister last December that there would be no return to a hard border in Ireland nor would there be a commercial border between the UK and Northern Ireland. The government’s position on the “Irish Question” is made all the more difficult because it is dependent on the ten votes of the Northern Ireland Democratic Unionist Party for its survival.
To make matters worse, the House of Lords has just sent back to the House of Commons key Brexit legislation, replete with a host of anti-hard Brexit amendments, such as a demand that the UK stay in the EU’s customs union.
Trying to find a consensus between these deeply incompatible positions has proved all but impossible. And all the while the EU keeps asking the UK to put forward detailed, realistic proposals on how to solve the Irish issue and to set out how it sees future trading relationships between the UK and the EU.
When it comes to that future trading relationship the position of the UK government has always been clear, a position shared by the leadership of the opposition Labour Party. It wants all the benefits of the single market and the customs union with none of the obligations. It does not want to have to accept freedom of movement, the jurisdiction of the European Court, or to make payments into the EU budget. This demand has been dubbed “cakism” and the EU has long made it clear that it will not be offering the UK this particular slice of gâteau.
Last December, in order to get the draft Withdrawal Agreement across the line and open the way to talks on first, a transition arrangement and, second, the future trade relationship the UK Prime Minister, Theresa May, agreed to language on the Irish issue in Article 49. The relevant clause reads:
In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.
In the following article, Article 50, the UK government also committed to ensure that:
In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland
Quite frankly, it is impossible for the UK government to honour both of these commitments at the same time for reasons that have been well rehearsed elsewhere.
But what, say the Dick Bartons of the UK civil service, if the words in Article 49 – In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union – were to be interpreted as applying not just to Northern Ireland but to the whole of the UK? In the absence of any other arrangement then, when the transition period comes to an end in December 2020, the whole of the UK would stay in the EU customs union and maybe, in the single market for goods, until such time as the technology was developed to allow the UK to leave and still maintain frictionless borders thereafter.
For the UK, such an interpretation of the words in Article 49 would offer a double bonus. At a stroke, it would solve the “Irish Question” for the foreseeable future and, even more important, basically give the UK what it always wanted, as we mention above, the benefits of the customs union and the single market, without any of the obligations.
A “gotcha” moment, according to some of the more excitable pro-government commentators in the British press, the UK government using the EU’s own words against it to get what it wants. With one bound the UK was free.
Now, leave aside the fact that not everyone in the UK government is agreed on this, as the Foreign Secretary, Boris Johnson, makes clear in comments quoted in the Daily Telegraph here.
The biggest problem is that the EU simply does not accept the UK’s interpretation that the words in Article 49 can apply to the whole of the UK, rather than to just Northern Ireland. The EU sees it as little more than a “game of words” of the part of the UK.
This Briefing has always approached the Brexit process based on our experiences of over 40 years in labour negotiations in Europe and elsewhere.
If you want first-hand knowledge of the ins and outs of the Brexit negotiations, read RTE’s incomparable Tony Connelly.
Not to mention the daily postings from the Financial Times, the Economist or Bloomberg. One of the best political critics of Brexit is Denis MacShane.
So, based on our labour negotiations experience, we know that when the meaning of a clause in a draft text in a negotiation is disputed then it is always, always, and always the interpretation of the stronger party that prevails. That’s just the way it is.
But, we can hear people say, surely some “neutral” third party could be found to interpret what the text means?
To grasp why this is not possible it is necessary to understand the difference between conflicts of interest and conflicts of rights.
A conflict of interest in a negotiation is, in essence, a conflict over who gets what, who gets the bigger share of the pie. In such a conflict there are no external, objective criteria to which the parties can refer to settle the issue. This is not to say that one party, or both, will not try to base their arguments on alleged external criteria, such as when a union’ in a pay negotiation’ quotes wage settlements elsewhere to bolster its case. The “going rate” it used to be known as.
For example, Henry Newman, director of Open Europe and a Conservative councillor in Camden, London, complains, by reference to deals with other countries, the EU is being inconsistent:
The EU doesn’t allow cherry picking of course & never breaks 4 freedoms of Single Market except when it comes to their version of the Northern Irish backstop, their bilateral relations with Switzerland, the Ukraine agreement, the Georgian agreement, the Moldovan agreement…
This is the old “it’s not fair” argument, well known to all parents. “It’s not fair. My brother/sister got to go and play with their friends. Why can’t I”.
Now the fact that the countries mentioned, Switzerland, Ukraine, Georgia, Moldovia, all want to be closer to the EU, rather than pull away from it like the UK, means that the EU has done the deals it has done with them because it is in the interest of the EU to do so.
That in no way compels it to do any sort of similar deal with the UK, a current member of the EU which is on its way out the door. The EU will do the “interest” deal with the UK that it sees to be in its interest. After all, does any rational negotiator do a deal to suit the interests of the other party, rather than their own interests? Especially when the other party has told you, basically, to “get lost, I can do better for myself elsewhere.”
You only have to ask the question for it to answer itself.
Because there are no objective criteria which can decide who gets the bigger share of the pie there are no “neutral” third parties who can make that decision. Ultimately, such negotiations are settled by the balances of forces, by who has the greater leverage. That, generally, is the bigger and the stronger side.
Once, however, an agreement is reached and signed, then disputes that may arise within the framework of the agreement are disputes about rights. What do particular provisions of the agreement mean? To resolve such disputes, most agreements contain dispute resolution procedures, which can provide for mediation in the first place and then, maybe, arbitration.
Many countries have mediation facilities and labour courts to help settle union/management conflicts. But rarely, do such mechanisms try to impose settlements in disputes involving conflict of interests. The German constitution even guarantees “wage autonomy”, the right of employers and unions to negotiate pay deals between themselves, even if that involves strikes and lockouts.
So, the UK can interpret Article 49 of the provisional Withdrawal Agreement any way it wants. But if the EU says it does not agree with the UK’s interpretation, then it isn’t going to go very far. As Tony Connelly makes clear here it is unlikely in the extreme that the EU will go along with the UK’s take on Article 49 as to do so would mean the UK getting the benefits of the single market and the customs union without the obligations that come with those benefits, such as free movement, acceptance of the jurisdiction of the European Court and appropriate contributions to the EU budget.
Which brings us to another negotiation question which we have discussed previously (here): What is the UK’s BATNA, what is its best alternative to a negotiated agreement?
To put it bluntly. The UK only has two options: to accept an agreement on the EU’s terms or to walk away, a “no deal” Brexit. The UK simply has no leverage to get the EU to give it the “cakism” deal it wants.
Day by day it becomes clear that for the UK leaving the EU is nowhere near as simple as the Brexiteers said it would be. You do not knit your economy into the wider European economy over 45 years and then unravel all of that in just three to four years. Laws, regulatory institutions and infrastructure have all to be created and put in place. Personnel have to be recruited and trained. Exiting EU arrangements with third countries, some 750 or so and counting, will also have to be replicated.
But you can walk away and live with the shambles that will ensue. The UK will survive the shambles but at what will it cost and how long will it last? Dylan may have sung “When you got nothing, you got nothing to lose”. But the UK has got plenty and has got plenty to lose. Not sure how many members of the UK parliament want to find out just how much it has got to lose through “no deal”.
Dick Barton word games are not going to get the UK out of the hole it has dug itself into.
There are no magic “bounds” to be free.