Professor Chris Grey’s latest Brexit analysis, looking at different scenarios arising from the Article 16 threat, how that threat is an attempt to re-run the Brexit process and the political implications of doing so for Johnson and for Labour.
First published in November 2021.
The ongoing Brexit process is in one of its periodic ‘quiet before the storm’ moments, with the storm threatening at times to be a hurricane and at others just some lingering drizzle. Over the last couple of weeks, it was generally being assumed that the UK would ‘trigger Article 16’ of the Northern Ireland Protocol (NIP) as early as next week, when COP-26 had ended, or if not then in early December. Thus speculation shifted to how the EU would respond, from targeted introduction of tariffs up to and including the possibility of giving notice of termination of some or all of the Trade and Cooperation Agreement (TCA).
Possibly as a result, David Frost’s statement in the House of Lords on Wednesday was slightly softer in tone than his recent remarks, with the threat of Article 16, whilst by no means removed, seeming to have been punted into the more indefinite future of “a short number of weeks”. It’s certainly hard to see how the current stasis can persist much beyond that given that the various grace period extensions expire at the end of the year. It’s also hard to see how the ongoing technical talks can resolve the apparently incompatible political mandates the negotiators have. We may well see yet more signalling of political positions following Frost’s meeting with Maros Sefcovic today, at which it’s reported (£) that the EU will offer further operational flexibilities, but on the now core issue of ECJ oversight will reiterate that it is non-negotiable.
Notwithstanding Frost’s slight change of tone, it is consistently reported that the EU’s expectation is that the UK is determined to trigger Article 16. If so, its response would depend partly on the grounds on which it was invoked. The central complexity of this situation lies in the relationship between law and politics. The use of Article 16 isn’t in and of itself a violation of the NIP – it exists as a mechanism that may legally be used in certain circumstances, really as a temporary response to serious and unforeseen problems, which begins a new process of negotiation to find a resolution. Yet everyone knows, not least because the government doesn’t disguise it, that the UK’s political intention is to use it to completely re-write, or even put an end to, the NIP. It’s also clear that many Brexiters in the media and beyond wrongly imagine that Article 16 is akin to Article 50 of the Lisbon Treaty, and provides an exit gateway from the NIP.
Frost trades on this slippery relationship of law and politics by insisting at one moment that there must be a full revision of the treaty – thus inviting major retaliation - whilst at other times, as on Wednesday, calling for the EU to be “calm” and not make the “massive and disproportionate response” of suspending the TCA, as if all he had in mind all along was a very limited and legitimate use of Article 16. In a way, this oscillation between aggression and passive-aggression is a microcosm of the simultaneous bellicosity and victimhood that characterizes Brexiter political psychology generally.
Minimalist and maximalist possibilities
So one possibility is that any UK trigger is couched in quite limited terms, thus placing limits on what the EU could reasonably and legally do in response. If that was the UK approach it would perhaps be aimed at further suspending implementation of, say, the chilled meats and plant product provisions, for so long that – assuming no adverse effects followed – it could be claimed that they were unnecessary on a permanent basis. Yet this would hardly serve the stated intention of rewriting the agreement or meet the new red line over ECJ involvement. Nor would it satisfy the Brexit Ultras for long.
It’s even conceivable, then, that what is in prospect is a rolling or repeated programme of Article 16 invocations and threatened invocations stretching for months into the future, each targeting a limited part of the NIP, aimed at gradually chipping away at its entirety, whilst restricting the scope for EU retaliation. This would be consistent with the way that the Brexit government has conducted itself throughout, following a pattern set domestically by the ERG: that is, to push ever harder, bank every concession, and push again for more.
Such an approach would be profoundly destabilizing for Northern Ireland, and for the UK in general, but this government is unlikely to care about that. To the extent that it is a possibility, it would make it sensible from an EU perspective to respond in the harshest legally possible way to any triggering of Article 16, and there are now very clear signs that this is emerging as the collective view of EU member states, including France and Germany. Patience with the UK’s duplicity is perhaps especially exhausted in Ireland (£).
At the same time, the EU will seek to mobilise international and especially US support. Ursula von der Leyen had a meeting with Joe Biden in Washington this week during which the UK’s Article 16 threat and responses to it were discussed. The subsequent EU statement stressed the importance of the NIP and Withdrawal Agreement being in place for the sake of peace and stability throughout the island of Ireland, whilst the US readout was to my mind rather more anodyne, and certainly less specific, in referring only to the two leaders’ “continued support for political and economic stability in Northern Ireland”. It didn’t quite seem to justify von der Leyen’s claim that Biden gave full support to the EU’s position, although of course, we don’t know exactly what was said within the meeting.
Far more striking was an extremely robust warning to the UK from senior members of the powerful US House Foreign Affairs Committee not to invoke or even threaten to invoke Article 16, which subsequently received strong support from other senior and influential political actors in the US. The wording of this is significantly different to other interventions from US politicians so far, including previous remarks from Joe Biden, in that it is explicitly concerned with Article 16, and not just with the need to uphold the Good Friday Agreement (GFA) and the peace process. That is important, as a repeated argument made by the UK government has been that its opposition to the Protocol is motivated by a desire to uphold the GFA and maintain peace, so that in invoking Article 16 it would not be defying the US. That argument is neutered by the Committee’s statement, and there has been some speculation that it is what prompted the apparent softening of Frost’s Wednesday statement.
Nevertheless, it is still abundantly possible, as some of the more aggressive postures Frost has taken imply, that the UK trigger will be couched in a maximalist way, citing the central provisions of the NIP as unworkable and inciting the strongest of responses from the EU (and, perhaps, a firmer public reaction from Biden). That would delight the Brexit Ultras although it’s worth recalling how their delight with the triggering of Article 50 quickly turned to complain that it had been ‘premature’ (£) and had exposed the UK to the inexorable pressure of the no-deal cliff edge. For in this maximalist scenario, with notice of the suspension or termination of the TCA being the EU response, precisely such a cliff edge would open up.
Indeed this would be wholly appropriate because the basis of the government’s approach is to re-run the entire Brexit process in the belief that a ‘better’ outcome than Brexit 1.0 can be secured by Johnson’s true believers and the use of ‘hardball’ tactics. So they would really like to go right back to the beginning of the Article 50 process, and in particular, they want to revisit the entirety of the Irish border issue right down to the fundamentals of whether hard Brexit entails any border and all the ideas of supposed technological and administrative solutions that could be applied.
It is shockingly dishonest, if one could be shocked any more by the dishonesty, given that Johnson agreed and signed the NIP. It is also shockingly stupid, if one could be shocked any more by the stupidity in the continued boneheaded denial of what hard Brexit means for borders (£). It’s like watching an inordinately obtuse moron endlessly re-calculating 1+1 in the unshakeable belief that eventually, the answer will be 3.
And so it is as if we are being transported back in time. Already Brexiters like Sir Jeffrey Donaldson are talking about how ‘Germany would not allow’ a trade war and we are even seeing a revival of all the bogus claims of 2016-2017 about how ‘German car makers’ and the UK's trade deficit with the EU are bound to ensure a great deal for Britain. This is why – as outlined in my previous post - if the EU give notice of terminating the TCA because it was predicated on a Withdrawal Agreement (including the NIP) that the UK is now reneging on, the Brexiters would then seek to renege on the financial settlement, which they always believed should only be agreed (if at all) as a quid pro quo for a trade agreement.
In both the minimalist and maximalist versions of these scenarios, the triggering of Article 16 would be the beginning and not the end of a protracted new Brexit phase – which we might call Brexit 2.0 - and no one can predict where it will end up. Moreover, it will be one characterized by a total breakdown of any surviving trust and goodwill between the EU and the UK. It may also, to an extent determined by the terms of the Article 16 invocation, involve some degree of parliamentary legislation. There are suggestions in the press (£) that the government is hoping this can be achieved by secondary legislation, entailing less parliamentary scrutiny and debate than primary legislation. It is also reported that the government is in the process of ‘shopping around’ for legal opinions (£) from sympathetic lawyers to justify the use of Article 16.
The domestic politics of Brexit 2.0
All this could bring the domestic politics of Brexit into sharp focus in a way that hasn’t been true since before the 2019 election. That politics will be fraught and complex. The most obvious domestic consequence of triggering Article 16 will be to feed a lot of red meat to the core leave voters and the pro-Brexit press. Just as the overall process is heading back to 2016-19 so too can we expect a re-ignition of the polarisation of that period. Hence we already have headlines in the Express about an ‘EU punishment plot to wreck Christmas’.
It’s possible, and many fear, that the consequence will be a massive upsurge of bellicose nationalism from which Johnson will profit hugely. Some even think that this would be the motivation for triggering Article 16. But time has moved on, and the circumstances are very different to Brexit 1.0. Of course part of that difference is that Britain has left the EU now, and also that there is a large Conservative majority in parliament. That puts Johnson in a stronger position than the May government.
On the other hand, it will glaringly expose the emptiness of the promise to ‘get Brexit done’. We’ve already seen, most recently in the ongoing row over parliamentary standards, divisions between the ‘red wall’ and ‘traditional seat’ Tory MPs. For the former, in particular, telling voters who came over to them primarily to deliver Brexit, and to stop arguing – or even hearing – about it, that we’re going to do it all again, is likely to go down very badly. We’ve also seen in the Chesham and Amersham by-election how ‘liberal Tories’ in what were safe seats are repelled by Johnson’s nationalist and populist politics, so they too will deplore re-opening Brexit in this way.
More generally, Johnson is a far less popular figure than he was. It is too early to say that the Paterson/ standards scandal is a turning point, but it has renewed the critique, recently articulated by John Major, of Johnson as both dishonest in general and contemptuous of norms and rules of political conduct in particular. Of course, the Brexiters have nothing but scorn for Major, but he still speaks for a certain segment of the core Tory vote which they cannot afford to alienate. By re-running Brexit, Johnson is going to be under sustained pressure to explain why he signed a deal he now rejects, and why he lied about that deal being an excellent one. He will also be more vulnerable to criticism if he uses backdoor parliamentary methods and dodgy legal advice given the now established pattern of his cavalier treatment of parliament and the rule of law.
Plus, unlike Brexit 1.0, all this will be happening in a country horribly battered by the continuing pandemic – the more horribly because of governmental failures – as well suffering the ongoing supply and labour crisis, which is already and rightly linked in the public mind to Brexit, and a somewhat related cost of living crisis. Dumping a new Brexit crisis on top of all this could be a recipe for disaster for the government. For even if such a crisis didn’t result in immediate trade sanctions from the EU, the possibility of these and the chilling effect of that possibility on business investment (£), as well as the political storm in general, would fill the headlines. There are also suggestions (£) that the government is preparing to withdraw from participation in Horizon Europe, the Copernicus satellite system, and Euratom cooperation as part of the showdown with the EU. More self-inflicted damage on a deeply damaged country.
Labour’s Brexit 2.0 opportunity
In such a scenario, much would depend upon how the Labour Party responds, since it will need its own Brexit 2.0 strategy. Keir Starmer’s recent comments that he wants to “make Brexit work” have attracted considerable attention, much of it critical. My own view – as I’ve argued many times before - is that this, or something very like it, is the only viable approach for Labour to take and, more importantly, the only viable approach for our country to take. Brexit has happened, in the sense that the UK has left the EU; but Brexit isn’t over, in the sense that what ‘not being in the EU’ means is a still-ongoing process. The latter is, indeed, precisely what the government is insisting on by seeking to revise or abandon the NIP.
So, on the one hand, trying to re-debate the question of whether or not the UK should leave is totally pointless, indeed totally meaningless. But, on the other, debating how the ongoing process should occur is vital, and most especially it is vital that that debate isn’t framed by the dishonesty and ideological extremism of the Brexiters. If the response is to say that any version of Brexit is worse than being in the EU well, fine, but it doesn’t negate the fact that some versions of the ongoing process are better or worse than others. It doesn’t even mean giving up on the possibility of re-joining, because, for sure, the route to that, if there is one, goes through a period of close and improving relations.
There is an interesting argument, put forth by the political commentator Jon Worth this week, that Labour would be better off not even to use the word ‘Brexit’ in this context, and simply to argue for a better relationship with the EU, in both tone and substance. I’ve got a lot of sympathy for that idea, and in fact, have recently been saying the same thing in some (unrecorded) meetings, but it probably isn’t going to happen. However what could perform a similar function to Worth’s proposed decoupling ‘Brexit’ from ‘this Brexit', and be a better slogan than ‘make Brexit work’, might be something on the lines of ‘Labour for a better Brexit’.
Or does it all fizzle out?
With all this said, it’s at least possible that the NIP row will just fizzle out (as the admittedly very different fishing row seems to have done this week), with the UK accepting some version of the EU’s offer of operational flexibilities. That could be because the whole Article 16 threat was always brinksmanship, or because the government has been unnerved by the threatened EU response (and/or by reactions in the US). Or it could happen if focus groups are showing the kind of adverse reactions amongst voters that the analysis in this post anticipates.
If one or more of these applies then it would be in Johnson’s nature, and consistent with his history, to U-turn. As Rafael Behr acutely pointed out this week, Johnson is also consistent in betraying those who trust or give loyalty to him. This being so, it’s perfectly conceivable that he will dump his simpering acolyte, David Frost, without compunction so as to avoid a confrontation with the EU. For that matter, Frost is such a snurge that it might not even be necessary to dump him – the one-time remainer turned Brexit ideologue might well just fall in line like a latter-day Vicar of Bray.
However, as suggested in a previous discussion of the idea of ‘madman strategy’, Johnson could find that even if he wants to de-escalate he has raised the expectations of the Brexiters too high to do so. It’s not at all clear that the ERG and their media supporters will tamely accept Article 16 being left untriggered, especially if what was latterly the central demand of removing all role for the ECJ isn’t met. So one possibility is that this becomes a new and potentially highly destabilising crisis for Johnson, in which like all his recent predecessors he falls foul of the ERG.
So a final, and quite likely, possibility is that, whilst accepting the EU proposals, Johnson and Frost continue to gripe about the NIP and continue to make more or less loud threats to use Article 16 in pursuit of further changes. In this way, they keep the pot boiling with the EU whilst hoping to keep the lid on the pot of the ERG. In those circumstances, ‘a better Brexit’ would still be a valid line for Labour to take, but it would have much less potency than in the context of a major crisis over Article 16.
From the point of view of the country as a whole this would arguably almost be the worst of all outcomes, with a permanent low-level antagonism with the EU rumbling on, and Brexiters still endlessly trying to revisit the past in the hope that they will find the pot of gold at the end of the rainbow. To put it another way, for all the pain it would cause all of us, a short, sharp and hard lesson in realpolitik might be better for Britain in the long run than an endless game of Tom Tiddler’s ground with the EU.
— AUTHOR —
▫ Professor Chris Grey, Professor of Organization Studies at Royal Holloway, University of London, and previously a professor at Cambridge University and Warwick University.
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