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Breaking the Law: is this the Brexit end game?

by Luis de Sousa Sun Sep 13th, 2020 at 05:16:58 PM EST

Another extraordinary week in the Brexit saga has come to pass. This time around a complete surprise, as another showdown was only expected in October, when time runs out for a timely approval of a Free Trade Agreement between the EU and the UK, ahead of the end of the transition period on the 31st of December.

The UK government has dropped a legal bombshell on the Brexit process, sending shrapnel in all directions. Time to pick up the pieces and make some sense out of it.

Frontpaged - Frank Schnittger

The Sticking Points

The UK government has tabled for discussion at Parliament a bill to regulate the future internal market of the Kingdom. At its base is the need to regulate trade between the four countries of the UK, in the absence of the trade framework enforced today by the  common market of the EU. As everyone knows by know, this bill goes well beyond regulation, it upholds the rule of law in the UK and between the UK and the rest of the world. In summary, these are the key legal aspects of this bill:

  • The UK government endows itself with the power to unilaterally modify or re-interpret provisions of the Northern Ireland Protocol (the bit of the Withdrawal Agreement that guarantees the status quo in Northern Ireland beyond the current transition period).

  • Any future legal or regulatory provisions introduced by the UK government within the framework of the internal market bill will automatically supersede any internal or international laws.

  • Any future provisions introduced within the internal market bill framework can not be considered illegal in any circumstance, whether they clash or not with existing internal or international laws.

The Financial Times provides the details in the excellent video bellow.

With this bill the UK government intends, in a single blow, to unilaterally repudiate the Northern Ireland Protocol, endow itself with means to supersede international regulations, and in general put itself above the law. While in any other developed country such intentions would be unconstitutional, they seem perfectly legal in a country that lacks a fundamental law in written form.

And all this came entirely by surprise. The European Commission, the Irish Government, the devolved government of Northern Ireland, all learned the explosive content of this bill nearly at the same time as the general public. Unprecedented.

To What Purpose?

Grasping the strategy of the UK government is not entirely straightforward. However, reflecting upon the events of recent months it becomes apparent how this bill fits a broader plan. The claims that only now the UK government understood the reach of the Northern Ireland Protocol fall flat.

The negotiations between the EU and the UK towards a trade agreement that could retain some of the features of the Common Market have been essentially stalled for three months. The UK continues to excuse itself from obliging to common standards and regulations, essential pillars of any free trade facility. The unwillingness of the UK government to progress is apparent, EU negotiators complain that once a particular aspect is agreed upon, the UK brings back into question other points previously agreed.

Various media outlets reported during the week that legal work on this bill had been ongoing at least since July. The government consulted with legal experts to thoroughly set its intentions in the text. A tussle eventually erupted among government and consulting experts, unfolding in the resignation of Jonathan Jones, the country's top legal civil servant.

There is only one way to rationalise this bill: it was meant to definitely put an end to the free trade negotiations with the EU. The only concern of the UK government is to obtain such outcome without appearing as the culprit. The hope was for the EU to simply walk away from the negotiation table in face of such contempt for the rule of law.

It thus becomes obvious, the UK government does not wish to build a free trade relationship with the EU. It neither seems to wish the status quo in Northern Ireland to endure, Good Friday Agreement be damned. It might well be the case that it signed the Withdrawal Agreement without any intent to ever implement it, merely to gain time.

What to expect from the EU

The EU, it seems, will have none of that. Trade negotiations will continue next week at the same pace as before. A swift accord is not to be expected, as a long list of important issues remains open, but a simple walk out is not happening.

At the same time, the introduction of the new internal market bill will not go without reaction. The European Commission interprets its tabling for discussion at the UK Parliament as an outright violation of the Withdrawal Agreement. That treaty obliges both parties to use a joint mechanism for legal clarification and conflict resolution that was thus bypassed. Midweek came the ultimatum: if the bill in its current form is not withdrawn the EU will seek legal action against the UK.

For a government seeking to position itself above the law, legal action from a foreign entity might not be of concern. However, the strategy of the EU is far more over-reaching. The entry into force of a EU-UK trade agreement remains subject to the full implementation of the Withdrawal Agreement. If the EU refers the UK to the ECJ  or an international court, no free trade between both economies will come into force until that legal tangle is undone.    

What to expect from the UK

At this stage it seems unlikely for the internal market bill to ever be signed into law. Members of the UK House of Lords vocalised their opposition early on, but it seems that even in Parliament the bill might not pass in its current form. However, it is almost certain to burn the coming two weeks of the political and media calendars. By then, with October at the door, chances of a timely approval of a EU-UK trade agreement will be marginal.

By this time it is evident to everyone that whatever the current UK prime-minister says is not to be taken seriously. Therefore, the promises to walk away from trade negotiations with the EU on the 15th of October or to exit the EU Common Market on the 31st of December can not possibly be taken for granted. It might well be, that finally gazing at the edge of the cliff, Boris Johnson decides to extend the transition period and adopt a reasonable negotiation stance on trade.

But that would not fit what increasingly appears as a thorough strategy since the current UK government took office. In the days that followed Brandon Lewis' incredible announcement at Parliament, the press let float that further provisions breaking the Withdrawal Agreement will be tabled with the Autumn Budget (possibly by early October). What if, when Boris Johnson claimed to prefer dying in a ditch than having a border down the Irish Sea, he was for once truthful?  

The End Game

I have been skipping my spice, therefore my clairvoyance is poor at this moment. However, the pieces of a well thought out plan seem to fall into place, this UK government never had the intention to reach a trade agreement with the EU. The end game is to come out of it not looking as the antagonist of the plot.

I see the probability of a EU-UK trade agreement entering into force on the 2nd of January, the first business day after the current transition period as very unlikely. I would not risk more than a twenty percent chance.  

Some may see this bill as mere bluff, without proper consequence. But Boris Johnson's government is tangling itself in such political cobwebs, with deadlines, ultimatums, legal acrobatics and diplomatic brinkmanship that if it wishes to perform another of its famous U-turns it might well find itself unable to so.      

Signing off on a light-hearted note I leave below an old song that come to mind as I read the first reports on the internal market bill. It is part of an LP entitled "British Steel".

Will there be a EU-UK trade agreement in force by the 2nd of January?
. Yes 0%
. No 100%

Votes: 8
Results | Other Polls
I think you understate the full impact of what the UK government has just done:

  1. Even by just presenting the Bill for discussion by Parliament, the UK has breached the "Good Faith" provisions of the Withdrawal Agreement, whereby both parties are supposed to work together to resolve outstanding issues, and failing agreement, to submit to third party arbitration..

  2. If the UK can unilaterally "dis-apply" and over-ride provisions of the Withdrawal Agreement, what is to prevent them from doing the same to any Trade Agreement the EU might sign up to?

  3. If the EU does accept what the UK has done and enter into a further legal arrangement with the UK, what is to prevent any EU member - e.g. Poland or Hungary - to similarly "dis-apply" any aspect of any EU Treaty it has taken a dislike to?

  4. At its core, the EU is no more than a series of Treaties by which its members pool their sovereignty and make compromises for the common good. If any member or ex-member is permitted to unilaterally abrogate parts of a treaty then whole edifice falls down. Presumably that is the Brexiteer intention.

  5. The UK appears to assume that in the event of a no-deal Brexit, it can rely on WTO rules to enable continued access to the Single Market, albeit with tariffs on some goods. But what if the EU were to retaliate and declare that the UK, as a rogue state, will no longer be allowed a share of quotas currently allocated to the EU and apply tariffs to all UK goods, or indeed fail to recognise UK regulatory standards as equivalent and subject all UK goods to lengthy inspections and delays?

The UK could, of course, retaliate, but with 50% of UK exports going to the EU, and only 5% of EU exports going to the UK, the impact would be an order of magnitude greater on the UK economy compared to the EU. The EU could also use the tariff income to support those sectors - e.g. farmers and auto-makers, most impacted by UK retaliation.

Once you venture into the realm of illegality, there is no knowing when and where it will stop. I have long been of the view that an acrimonious divorce will lead to an ever increasing divide and divergence between the UK and EU, and that only a full scale trade war will be sufficient to force both sides to reach an accommodation.  Basically it will take a revolution in England, probably accompanied by Scottish independence and a united Ireland, before any sort of normality ever breaks out again.

Spain may revisit the Treaty of Utrecht under which Gibraltar was ceded to the British in 1714 and Cyprus may seek to recover the British military bases on its territory. Greece will seek the return of the Elgin Marbles and any number of colonial settlements could be revisited. It comes down to power at the end of the day, and without a supportive Trump in the White House England just doesn't have that much any more.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sun Sep 13th, 2020 at 09:28:54 PM EST
The whole point of Brexit is to allow the UK to ignore any rules and agreements it feels like ignoring. This was always the key selling point to supporters. Not only would immigrants be told where to go, but there would be no galling outside interference and oversight by anyone whatsoever.

This is what I meant by a complete collapse in the English moral character. A combination of Thatcherite opportunism, public school entitlement, and proletarian oppositional defiance have congealed to produce a mess of incompetent fools who genuinely believe they can do whatever they want, and no one has the right to tell them otherwise.

It's been a long time coming. From tax evading small and large businesses, to estate agents and lawyers who pad their fees, to predatory corporations of all kinds, to politicians who fiddle their expenses and accept secret backhanders from foreign powers - they're all in it for themselves, and there's no longer any concept of community, kindness, self-sacrifice, or shared morality.

Of course there are consequences, and of course they don't understand this. They've been told they should only look after number one, and they will - even if it kills them.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Sun Sep 13th, 2020 at 09:40:43 PM EST
[ Parent ]
Yes, but my point stands. They can go off with no deal and break the Withdrawal agreement, but they then have no right to expect others to abide by their commitments under WTO or whatever. They feel entitled to whatever Canada got. They think the EU owes them a free trading arrangement and that WTO rules should apply to others. Just wait for the howls of outrage and protest when no one will trade with them on their terms.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sun Sep 13th, 2020 at 11:25:47 PM EST
[ Parent ]
Maybe Gibraltar, Cyprus, etc. could leave the UK and then get together with Scotland to be a new "ex-British Commonwealth" country in the EU. Maybe they could even get some other old colonies to join in the fun!
by asdf on Mon Sep 14th, 2020 at 10:57:30 PM EST
[ Parent ]
According to the World Bank

United Kingdom exports of goods and services as percentage of GDP is 30.01% and imports of goods and services as percentage of GDP is 31.77%.

So they are essentially toying with ripping the guts out of the UK economy.

Reminds me of the joke about the boy who killed his parents and then plead for mercy because he was an orphan.

She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre

by ATinNM on Mon Sep 14th, 2020 at 02:01:24 AM EST
England's foreign policy for centuries has been to allow no strong power on the Continent. Hence the centuries long struggles with France. Playing off France and Austria. Supporting Garibaldi against Austria.
The later support of and "alliance with" France was to thwart the growing power of Germany,

What now? fighting the German bankers? Assuming US support? Well I admit that either of the brain-damaged jamokes running for President probably will support the UK. But Johnson might go too far with "l'état, c'est moi".

by StillInTheWilderness on Mon Sep 14th, 2020 at 03:46:08 PM EST
Sure, Boris wants to paint the EU as the bad guy, and he will have quite a bit of success with that, up until Christmas.

But that's not an endgame. Christmas isn't far off.

British exceptionalism seems to have come in several flavours over the centuries :

  1. actual Rule Brittania, covering roughly the 19th Century (dominant maritime power THEREFORE dominant trading power) -- not strictly applicable today

  2. Britain stands alone against the Nazis. The frame is a bit of a stretch when the enemy is the EU. And anyway; where are the Spitfires?

  3. Punching above its weight by taking sides in every European war, with the advantage that an island nation was too troublesome to invade (though only the weather saved them from the Spanish armada) -- but the EU is sensibly one and indivisible in trade matters.

So I see nothing but dead ends in Britain striking defiant poses and walking away from treaties... There will necessarily be humiliating climbdowns.

And it will hurt economically, and therefore be terminally unpopular, by early next year.

It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II

by eurogreen on Mon Sep 14th, 2020 at 04:36:13 PM EST
Well, Portugal profited well from point 3. Without their help in the XIV and XIX centuries Portugal would probably have been subjugated. There was a price to pay against Napolean, but not regretful.

I am no so certain we will need to wait for Christmas. If they walk away from negotiations on the 15th of October as promised things will deteriorate quite fast.  


by Luis de Sousa (luis[dot]de[dot]sousa[at]protonmail[dot]ch) on Mon Sep 14th, 2020 at 06:30:50 PM EST
[ Parent ]
because Britain wanted a license to trade African slaves until they didn't anymore.
by Cat on Mon Sep 14th, 2020 at 07:59:06 PM EST
[ Parent ]
I seem to be in a minority here in thinking this could run and run and in not expecting any UK climbdown in the next few years. Yes, relations with the EU could deteriorate fast. I expect a trade war.

Yes the UK economy could be severely damaged, with Ireland surprisingly resilient in the circumstances, and not the weakest link in the EU chain as Brexiteers seem to expect.

Yes N. Ireland could be de-stabilised and momentum for Scottish independence grow. But Boris can refuse referendums in Scotland and N. Ireland, and he has a solid majority of loyalists to ride out any storms. Most of the "moderates" in the Conservative party were weeded out at the last election.

The tabloids will sell any EU setbacks as major British victories, and any UK depression as a necessary transition to a brave new world. The sunny uplands of FREEDOM will always be just around the corner.

The Tories will lose the next election, but that could be over four years away. And by then a lot of irreversible changes will have taken place, and Labour will be complicit in a lot of it, and not actually offer a way back.

This divorce is for keeps, and it will be a long and bitter one.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Mon Sep 14th, 2020 at 10:30:13 PM EST
[ Parent ]
One aspect I did not mention in the article is the Brexit party. If there is a prorogation to the transition period it is certain to overtake the Conservative party in polls. That could happen even with a FTA agreement in place, what they now call "Brexit only in name".

Therefore I expect a definite exit to unfold pretty soon.


by Luis de Sousa (luis[dot]de[dot]sousa[at]protonmail[dot]ch) on Tue Sep 15th, 2020 at 08:36:31 AM EST
[ Parent ]
There was a point in time when I thought the Brexit Party could replace the Tories as the dominant conservative party in the two party fptp dialectic. But Farage sold out his own party in favour of Conservative candidates in marginal constituencies and so I don't think the Brexit party will ever come back as a major force. For all intents and purposes, the Conservative Party now IS the Brexit party with hardly any remoaners or even moderates left within its ranks.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Sep 15th, 2020 at 09:36:36 AM EST
[ Parent ]
Last night's Commons vote is a case in point. Yesterday the Guardian was talking up a big Tory "rule of law" rebellion... It amounted to 20 Tory abstentions, and zero votes against...
And today I can't even find an article on the subject on the Guardian site!

It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II
by eurogreen on Tue Sep 15th, 2020 at 10:13:10 AM EST
[ Parent ]
One must wonder what the likes of Theresa May and Geoffrey Cox did last night.

by Luis de Sousa (luis[dot]de[dot]sousa[at]protonmail[dot]ch) on Wed Sep 16th, 2020 at 06:43:40 AM EST
[ Parent ]
I wouldn't bet the farm.  The masses can be led around by the nose by modern techniques of persuasion and propaganda.

She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre
by ATinNM on Mon Sep 14th, 2020 at 06:31:08 PM EST
[ Parent ]
The narrative is adolescent rebellion. That only ends with adulthood - unlikely in this situation - or a car crash.
by ThatBritGuy (thatbritguy (at) googlemail.com) on Mon Sep 14th, 2020 at 07:29:43 PM EST
[ Parent ]
What I don't get is what they talk about during the "negotiation" meetings.

"You got anything to propose that's different from last time?"
"Nope, how about you?"
"Ok, let's eat!"

by asdf on Mon Sep 14th, 2020 at 10:50:21 PM EST
"Wait, you know the state aid thing that we agreed to last year? Well, we dis-agreed it. You want to see our list of new demands?"
"Shall we have lunch first?"

It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II
by eurogreen on Tue Sep 15th, 2020 at 10:06:20 AM EST
[ Parent ]

Basically this. And while that isn't unique to the UK it's probably the worst case of it we have seen up to date.

by generic on Tue Sep 15th, 2020 at 11:09:31 AM EST
Pretty much what we have here in the US.  Just wait until they all start reading QAnon.
by rifek on Wed Sep 23rd, 2020 at 04:24:56 PM EST
[ Parent ]
It is looking like we will be treated to the spectacle of a majority of UK voters despising a government, which THEY were blind enough to elect, remain in power for another four long years, all the while making everyone but the financial elites' lives miserable. It will be interesting to see how the tabloid press will play this and how that will be received.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Tue Sep 15th, 2020 at 05:17:30 PM EST
The Tories win by manipulating FPTP. The reality is elections are swung by relatively tiny numbers of votes in less than a hundred marginals, and if you concentrate all your firepower there and lie a lot - and if you have the press and media in your pocket to cover the essentials elsewhere - you can easily swing a win.

With continental PR, the Tories wouldn't even have a working majority.

So while they did win more votes, they certainly didn't win voter approval for the supermajority they're operating with. That supermajority is a handy artefact of the UK's antiquated electoral system, and makes it very hard for other parties to exert any influence on the government.

None of which solves the immediate problem, which is that the UK is clearly heading towards outright post-imperial fascist senility, albeit with some comedy trimmings.

The unknowns are how long Johnson hangs on for - it's unlikely to be much past Jan 1, IMO - and who will take over when he's gone.

The bigger unknown is how far are they willing to take this?

If the combination of Covid, trade war, and Brexit is allowed to proceed, it will create the kind of mass destitution we're more used to seeing a hot war. At some point the population will break, although without organised resistance it won't do much except mill around throwing petrol bombs and getting shot at and interned - basically the Troubles, but in mainland cities.

They may be a hot war too. The Tories are clearly setting up the EU as the enemy, and considering their backers would love to see a hot war between the EU and the UK, it's not wise to assume it can't happen.

It may not be a very hot war - the French still have nukes of their own, after all - but some skirmishes at sea would play very well in some parts of Westminster.

It's going to be a very grim few years.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Tue Sep 15th, 2020 at 07:22:56 PM EST
[ Parent ]
Worst case scenario, but sadly a possible one. Johnson might survive a while longer if he is perceived to remain on the side of the Brexit party, but indeed these coming four years are looking quite a stretch. As I wrote above, Nigel Farage as prime-minister is not unimaginable at this point. If that happens, hot wars become a real possibility.

How far they are willing to go is also dependent on what happens to the White House. Will it remain hollow? Or will it host a President again? And through what ordeals? I doubt that with a functioning US government the Withdrawal Agreement would have been broken so easily.


by Luis de Sousa (luis[dot]de[dot]sousa[at]protonmail[dot]ch) on Wed Sep 16th, 2020 at 07:01:24 AM EST
[ Parent ]
No President for at least four years, maybe eight, maybe necer agin. They have all gone downhill after Eisenhower. Johnson, at least, pushed through Civil Rights legislation, and Medicare. OTOH, hotted up VietNam. Nixon tried to get out while saving face, but was a paranoid jerk. In the end, it was a rout anyway. Jimmy Carter sat and did nothing while Iran held hostages and the economy tanked. I could go on and on. Now we will either have the corrupt Orange Baboon or the senile corrupt founder of the Catfood Commission. Or will Harris really rule? Or is she just an Idpol cardboard cutout? Who really will call the shots? Look to see if Hillary Clinton gets a high cabinet post or replaces Harris as Harris replaces Biden, assuming the Senate goes (D).  My late Uncle (the son of Italian immigrants and WW II veteran) told me about ten years ago, "Maybe it's time for the family to move back to Europe."
by StillInTheWilderness on Fri Sep 25th, 2020 at 03:21:27 PM EST
[ Parent ]
It may not be a very hot war - the French still have nukes of their own, after all - but some skirmishes at sea would play very well in some parts of Westminster.

I've already written that, should the Spanish start looking at Gibraltar funny, the Brexiters would start Falkland 2.0 immediately.

Even without a fully 'hot war', there will probably be some semi-officially sanctioned smuggling to "break the new Continental Blockade".

by Bernard (bernard) on Wed Sep 16th, 2020 at 06:55:43 PM EST
[ Parent ]
The first step was today, with Spain's proposal that Gibraltar become part of Schengen.
by gk (gk (gk quattro due due sette @gmail.com)) on Wed Sep 16th, 2020 at 07:39:24 PM EST
[ Parent ]
The worst part being that the Gibraltar PM himself is all for it, but the UK is unlikely to accept this.

Gibraltar Wants to Join Schengen Post-Brexit - UK Says No

The Chief of Gibraltar, the 6.2 km2 enclave at the southern end of the Iberian Peninsula, Fabian Picardo, wants to join the Schengen Area in a post-Brexit Europe. However, the UK is not ready to let something like that happen.

In an interview last Friday, Picardo said that it would be positive for Gibraltar to join the Schengen Area, as nearly 14,000 workers cross the border every day to go to work in Gibraltar where full employment prevails.

The vast majority of these workers are Spanish or nationals of other countries residing in Spain, including 2,500 Britons.

"Does it make sense to the EU that 2.5 square miles at the southern tip of the peninsula is not accessible to European citizens? I do not believe so," Picardo said throughout the interview.

by Bernard (bernard) on Wed Sep 16th, 2020 at 08:31:33 PM EST
[ Parent ]
Can't do something just because it makes sense for all those affected. There is the demagoguery to be concerned about.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Wed Sep 16th, 2020 at 09:18:48 PM EST
[ Parent ]
Gibraltar and Malta merging would make sense on grounds of common culture and language. Cyprus also, not so much.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Wed Sep 16th, 2020 at 09:21:25 PM EST
[ Parent ]
Gibraltar becoming a semi-autonomous region within Andalusia would make a lot more sense.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Wed Sep 16th, 2020 at 11:00:42 PM EST
[ Parent ]
Considering that so many who are employed in one or the  other live other than  where they are employed, for sure. Politically I would expect a dog fight.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Thu Sep 17th, 2020 at 03:16:58 AM EST
[ Parent ]
However, the English bulldog might be missing most of its teeth.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Thu Sep 17th, 2020 at 03:18:03 AM EST
[ Parent ]
To busy chashing his tail?
by StillInTheWilderness on Fri Sep 25th, 2020 at 03:09:48 PM EST
[ Parent ]

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