Not just the title of a Grandmaster Flash album, the tagline “they said it couldn’t be done” applies with fair accuracy to the UK-EU Free Trade Agreement announced on Christmas Eve, 2020. This is the much-vaunted “deal” about which British politics convulsed itself for the best part of four years. Somehow—backgrounded by Coronavirus and foregrounded by Christmas—HMGov pulled off the apparently impossible and negotiated it in nine months, not nine years. The latter, of course, being the more usual figure—one thinks of Canada. No deal, finally and irrevocably, was “off the table.”
Detailed negotiations had progressed, remotely, which as anyone who’s used Zoom knows is no mean feat. Even after coronavirus felled both Boris Johnson and the EU’s chief negotiator Michel Barnier, the UK refused to extend the Brexit transition period. “No deal” (remember that?) predictions became ever more common and ever more intense, but then the EU (as is its wont) began to show willing, dropping much of its intransigence. The spectacle of people on both sides undertaking the painstaking job of ruling out all the restaurants on Deliveroo—and being forced to stand outside in the rain as the local chippie shut down for the night—receded.
Of course, the stragglers of Continuity Remain—now reduced to a demented and conspiratorial rump—kept lighting up the internet with demands to stop Brexit and hold a People’s Vote, even unto December 31st. For all I know, they’re lighting it up still. Meanwhile, a sense of resignation (coupled with the start of the UK’s coronavirus vaccine rollout, a subject of considerable media attention to which the deal had to play second fiddle) began to emerge. One wonkish political obsessive produced a Brexit board game. “We are all Brexiteers now” ran not a few headlines.
Brexit was over. Elvis had left the building.
Is the deal a good one? As Chou En-Lai is alleged to have said about the French Revolution, “it is too early to tell.” The two sides have achieved their shared ambition to remove tariffs and quotas on all goods. This goes further than any other EU trade deal with a third country. It will prevent additional taxes on products that would have made some UK businesses, in sectors like agriculture and car manufacturing, less competitive. This alone is remarkable, and has ensured that most delays at ports in both jurisdictions have been due to coronavirus and its concomitant constraints on any sort of movement, not Brexit.
The situation with services is murkier, very much left at wading-pool depth, though it has never formed the deep end even within the EU’s treaties. This is typical of free trade agreements and reflects the reality that governance elites are happy to expose unskilled labour to the chill winds of competition via immigration while protecting their own interests in a manner reminiscent of medieval guilds. In a 1200-page document, “financial services” appears six times, while “fish” appears sixteen.
To the extent that they already exist, mutual recognition of professional qualifications will end. This means UK professionals will have to comply with qualification requirements in each EU member state in which they want to work, which could involve having to pass additional examinations or a need to demonstrate a certain period of work experience. This will make it harder and more expensive for businesses to provide services in the EU. The City, of course, has known this was coming for a while, and as is always the case, has proven skilled at looking after its interests. There has been a flurry of activity when it comes to setting up EU “branch-office” operations and obtaining equivalences.
A brief outline of the situation with respect to my own profession, law, captures the lie of the land. While the UK–EU FTA goes further than most free trade agreements in its coverage of legal services, member states can still impose total bans on UK lawyers advising on their own law. Even if advising on UK law, they may be subject to particular rules. In the Czech Republic, for example, UK lawyers will have to be resident to provide legal advice, while across the border in Austria they are specifically prohibited from being resident and must give legal advice on a cross-border basis. Many individual member states already prohibit UK lawyers from any ownership or control of law firms in their countries. In some member states, UK lawyers will be able to fly in, provide legal advice, and fly out again without work permits. In others, this will be subject to an economic needs test.
In many respects, the regime has reverted to what obtained before 1973, where European businesses of whatever stripe made use of English and Scottish courts because of the old rule of thumb that common law countries had better commercial, corporate, and agency law, while civilian (Roman law countries) had more sensible family and property law.
Scotland, of course, has always been a pleasing mixture of both Roman and English law coupled with timely English enforcement, so Edinburgh remains an attractive second choice for Europeans if London gets too pricey. In addition, the traditional rules of private international law (sometimes called “conflict of laws”) will likely matter more. This subject had been on the decline in the UK. I suspect it will now replace or at least supplement EU law in most UK law degrees.
The two sticking points, and the last to be resolved, were Northern Ireland and fisheries. Fisheries came close to blowing up the whole agreement. At eight pm on the evening of December 21st, Boris Johnson delivered a message to Ursula von der Leyen, president of the European Commission, stating that he would not sign a Brexit deal with the EU. Earlier that day, the EU had produced its final card, a clause von der Leyen called “the hammer,” granting Brussels the right to retaliate across the board if Britain sought future reductions in access to its waters for EU fishermen.
The no deal threat worked and von der Leyen folded, throwing the EU’s “hammer” overboard. Then on Tuesday, she ditched demands that its vessels should continue to enjoy their current quotas for seven or eight years. And yet. What sense was there in endangering the rest of the UK’s economy over fish? Each year, Britain exports just short of £300 billion, or about USD$400 billion, worth of goods and services to the EU—some 40 percent of everything it sells abroad. Of this, fish sales are worth a little more than £1 billion, or a third of 1 percent of the total. Britain was thus threatening to make more than 99 percent of its trade with the EU more difficult and expensive, just to defend the fish.
For cod’s sake, don’t sacrifice the fish, British-American writer Lionel Shriver wrote in January 2020, capturing in a single sentence the pained cri de coeur of an historically seafaring island’s loss of a substantial part of its diet and maritime heritage. It has passed into folklore how, in 1973, Ted Heath’s infamous sell-out—“swallow the lot, and swallow it now”—saw undercompensated British fishermen in places as far apart as Norfolk and the Scottish Highlands forced to burn their boats.
Despite von der Leyen’s climbdown, the UK probably gave away more than it would have liked on the matter of fish. Nonetheless, the amount caught in UK waters by UK vessels will increase significantly, Britain has maintained tariff- and quota-free access to the EU market, and the agreement establishes the UK’s status as an independent coastal state. It is undoubtedly an improvement on the status quo ante and will contribute to the revitalisation of our fishing industry, especially in Scotland.
In this, there is method to Boris’s madness. Scotland’s fisheries are where a unique group, the so-called “Double Leavers,” make their homes: they are Scots who voted both Leave in 2016 and in favour of Scottish independence in 2014. Make it clear to them that they stand to gain more from their traditional industry thanks to Brexit than they will from an independent Scotland within the EU, and Boris the Etonian may hive off enough votes to undermine support for Scottish independence in any future referendum. There is also the related point that—had “No Deal” eventuated—British fishermen simply did not have the capacity to catch all the fish available. It is difficult to do so effectively without enough boats.
So far, so sound, until we come to the Northern Ireland Protocol. Put bluntly, this subjects Northern Ireland to different regulations from the rest of the United Kingdom. Those regulations emanate from a political entity of which the UK is not a member. At least in part, the European Court of Justice still has jurisdiction there. An arrangement like this is not compatible with Northern Ireland being a sovereign part of the UK.
And how did this come about? Because the EU has hard borders with what EU treaties call “third countries,” and the UK is now a third country, the logical consequence is a hard border between the Republic of Ireland and Northern Ireland. Except a hard border between Ireland and Northern Ireland is not possible, because of the 1998 Good Friday Agreement. The Good Friday Agreement is based on referendums in both Northern Ireland and Ireland.
It’s partly an international treaty, partly an agreement between the parties. It isn’t part of UK domestic law but it binds us in so many areas it may as well be. It guarantees Northern Ireland access to the European Court of Human Rights—a major reason David Cameron couldn’t repeal the Blair-era Human Rights Act. It was drafted on the understanding both Ireland and the UK were part of the EU so it didn’t envisage what either country’s commitments could be in relation to the border in the event of either leaving. The deal ensures there is no hard border, but nonetheless Northern Ireland has become the UK’s cat-flap of doom, simply because the EU was (rightly) concerned that importers could use it as backdoor into the customs union.
It is entirely possible the price of Brexit may be breakup of the Union, although for those seeking a united Ireland (including many people in England and Wales who resent how much the Province costs the Exchequer), paying that price (however accounted) will be no bad thing. To quote Bernard Woolley of Yes, Minister fame: “Ireland doesn’t make it any better; Ireland doesn’t make anything any better.”
As the ink on the deal dried, there was public speculation in certain quarters about the emergence of a movement to re-join the bloc in the near future. I do not think this likely, at least not for a long time. One of the observations that comes out of debate since its passage through Parliament after Christmas is that even sensible Remainers (not the conspiracists on social media) have a problem with what I’m going to call “mid-level arguments.” Almost everything they said or say, in 2016 and now, is either minutiae about trade cumulation rules (to give one example among many) or these big, thumping abstract ideas like peace between nations or the “Europe Project.”
The Leave side had its thumping abstract ideas (sovereignty being the main one) and its minutiae (product standards, the ECJ and so on), but it also had a mid-level narrative about distant and/or self-interested EU officials and the erosion of British institutions. This was a narrative that had its origins in the Maastricht debate and Britain being bounced out of the European Exchange Rate Mechanism on “Black Wednesday” in 1992. It evolved over time, responded to events, and ultimately shaped people’s perceptions of what it meant to be in the EU.
That kind of rhetorical storytelling is enormously important in politics and the Remain side just didn’t do it and still don’t get why it’s necessary. Part of this comes down to hyper-specialisation among the sort of people who like the EU (academics are a good example), leaving them capable of making highly detailed arguments in their own sphere, but lacking the skills needed for mid-level storytelling. This meant Leavers were subjected to a series of technical lectures or got battered about the head with enormous ideas, the apotheosis of which was of course Donald Tusk’s suggestion that—if the UK left the EU—Western civilisation was at risk.
So, no. Brexit, like Elvis, has definitively left the building.