In Good Faith

The debate over whether last week's UK-EU agreement is "legally binding" is another example of British confusion between internal and external sovereignty (I'm beginning to feel like a stuck record), though on this occasion exhibited more by remainers than leavers. As a joint report to the European Council, the "agreement" provides evidence of sufficient progress for further negotiation (phase 2) to commence. This should in due course lead to the conclusion of the actual Withdrawal Agreement. However, the joint report isn't a preliminary commitment that will become a default agreement (hence "nothing is agreed until everything is agreed") but a set of promises concerning the parameters of the final agreement, notably in respect of citizens' right, money and the Irish border. It is therefore not incorrect to describe it as a "statement of intent", even if that terminology leads to accusations of back-sliding. Legally, the joint report has no real force. Politically, it obliges the UK to ensure that the commitments it made on the 8th of December are honoured in the eventual Withdrawal Agreement. If it does not do so, we will be facing a disorderly exit and can kiss the prospect of a custom trade deal goodbye. Where British politicians have been misleading is in claiming that the terms of the agreement (specifically the money) are conditional on a trade deal.

International agreements are only "legally binding" if they either include provision for legal enforcement via an intergovernmental agency or have been incorporated into domestic law. Beyond that, they are binding purely in the sense that all parties consent to be so bound, which is ultimately an expression of "good faith" (Leo Varadkar's emphatic use of this phrase in describing Theresa May's conduct during the negotiations leading up to the 8th of December is significant). Though a state may have committed to be bound by a treaty, it can still withdraw at any time, as the US has threatened to do over the Iran nuclear deal, for example. This is because external sovereignty (a concession made to another state) is trumped by internal sovereignty (the ultimate authority of a state). That is why an international treaty incorporated into domestic law by legislation can always be repealed by subsequent legislation, as will be the case when the European Union (Withdrawal) Bill supersedes the 1972 European Communities Act. Whether there are consequences when a state reneges on a treaty is a matter of realpolitik, not a matter of law.

Michael Gove made this same point: "If the British people dislike the arrangement that we have negotiated with the EU, the agreement will allow a future government to diverge." While many saw this as a nod and a wink towards the Brexit ultras, it was actually a simple re-statement of Tom Paine's axiom that no future parliament can be bound by a parliament of the past, and thus a rejection of Edmund Burke's "contract of eternal society" in which the dead constrain the living. You might have thought that remainers - many of whom have insisted that a second referendum should be held on the grounds that leavers are gradually dying off and thus the complexion of the electorate is changing - would have welcomed this rejection of conservative ideology by the Environment Minister, but most seem to have interpreted it as evidence of the Conservatives' bad faith and little else. That may not be entirely groundless, but political commentators have passed up a fine opportunity to hoist the pseudo-intellectual Gove by his own petard.

Following the misrepresentation of the joint report's implications by David Davis over the weekend, the political debate has moved on to the question of whether the UK government really is negotiating in good faith. Many people have pointed out that the disparity between what the government has agreed and what it claims in the press is only too evident to the rest of an EU political establishment that includes many English-speakers and not a few anglophiles, but this ignores that the government is, Janus-like, negotiating in two opposite directions at the same time: with the EU27 and with the British public. This is the inevitable consequence of not having secured domestic consensus on the Brexit end-state, or at least a consensus that could command a majority both in the Commons and the wider country. All along, the government has sought to avoid debate and scrutiny on the grounds that its hands could not be tied in the upcoming negotiations with the EU27, as if the parameters for those talks were not already clearly and very publicly delineated.

The political incompetence on display arises not from Davis's laziness or Gove's disingenuousness, though both are real, but from the triviality of the 2016 referendum campaign and the refusal to interrogate the result beyond otiose commentary on the ghastly white working class, Olympian essays about a supposed "kulturkamf" and the marketing-inflected typology espoused by the likes of David Goodhart. The news that the EU27 are already asking for firmer commitments from Number 10 ahead of this week's European Council meeting, and are even suggesting that the preparatory talks on the future relationship (i.e. talks about trade talks) might be deferred until March, indicates that the failure to settle the domestic side of the debate is having a real and  detrimental effect on the withdrawal negotiations. In the circumstances, the last thing we need is more constructive ambiguity, but the problem we face is that invoking Article 50 pretty much shut the window of opportunity for a debate that might have led to a consensus. That said, opposing the Article 50 bill would also have prevented a debate as the political contest would simply have reverted to the binary of "in" versus "out". What was needed was a more imaginative and less partisan administration than Theresa May could provide.

The likely result of this is not that the UK might, as some leavers suppose, "put one over" the EU27 and, in a sort of Italian Job counterfactual, escape over the border in a bus full of bullion, but that we will end up with a Withdrawal Agreement largely dictated by the EU27 and a severe shortage of goodwill for the negotiation of a future relationship, in particular the trade deal. The odds of that negotiation dragging on for years have increased as it has become clear that a transition period will have to be agreed, and it is also clear that the terms of that transition will essentially be the status quo (i.e. continued membership of the Single Market and Customs Union) less any UK say within the EU after the 29th of March, 2019. This raises the very real prospect that the increasingly elusive trade deal will not be finalised before the next scheduled general election in May 2022. I suspect that would be fatal for an incumbent Conservative administration because the outline of what is still likely to be a soft Brexit will not convince many true believers that it was worth the wait, while the majority of the electorate will be focused on the matters neglected by the government over the preceding years, building on the frustration evident in the 2017 election.

As it stands, many Tory leavers appear to be betting on a trade deal being agreed in double-quick time, though perhaps not as quick as the "one minute" suggested by David Davis, but that is only credible if you assume either a deal that is truly off-the-peg (i.e. no "pluses"), such as Norway or Canada, or a fallback to WTO defaults. The former is unlikely because of the complicating factors of freedom of movement and the needs of the financial services sector, while the latter would probably lead to a major recession. I worry that the ultras see economic decimation as an opportunity rather than a threat, both as a way of reorienting UK industry for a low-wage, free-trade future, and as a means of justifying "real" austerity. To this end, they might prefer to engineer a walk-out in 2018, with a view to riding out a recession and welcoming the first shoots of recovery around 2020. Unfortunately, many ultras remain in thrall to the myths of the Thatcher years, notably that the UK rediscovered its economic mojo after a strong purgative in the early 80s. They forget the importance of the Falklands War in securing electoral support. Or perhaps they don't, which is even more worrying. Someone is arguing in bad faith.