The reaction of the European Union negotiators and heads of state to Prime Minister Johnson's recent slate of proposals for eliminating the Irish backstop has exposed a fundamental truth about the Brexit negotiation process. So long as the EU must consent to British proposals for leaving under Article 50 of the Treaty of the European Union, the EU will not allow a meaningful Brexit—one in which Britain regains sovereignty over its own trade and regulatory policy.
The Prime Minister's recent proposals have provoked a chilly response from EU negotiators, officials and heads of state. Their objections, though strenuously asserted, offer little by way of explanation or justification. Senior officials have reflexively characterized Johnson's proposals as "not workable," or "nearly impossible" or incapable of providing a "basis" for an agreement, without saying why, or indeed, how specifically they fail to solve the supposedly overriding problem of the Irish border.
In fact, his compromise proposals would have, if they had been accepted, rather elegantly solved that problem while also allowing Britain to regain sovereignty over its trade policy. True, Johnson's compromise plan would have created a customs border between the Northern Ireland and the Republic of Ireland. But it would have also allowed goods traded in Northern Ireland to remain under the EU regulatory regime, contingent upon the approval of a reconstituted Northern Irish parliament. That would have eliminated the need for onerous customs checks on goods passing between the two Irelands. Johnson's idea of performing customs checks electronically at sites well back from the border also would have further reduced the risk of establishing a hard border.
Indeed, so-called hard borders are typically characterized by the physical presence of customs personnel who require proof that goods in carriage meet the regulatory standards of the country being entered. By agreeing to a common all island EU regulatory regime, and by devising methods for eliminating physical checks at the border, Johnson's proposals directly addressed, and seemingly remedied, the problem EU negotiators designed the backstop to address.
Many in Parliament apparently thought so. Johnson's proposals immediately garnered support from Conservative and Democratic Unionist Party (DUP) Brexiters, Labour Leavers, and even some rebel Conservative Remainers, suggesting that a deal with the EU based on his proposals could secure a parliamentary majority. Nevertheless, EU negotiators have found them entirely wanting. Their reaction is revelatory. Specifically, it reveals that a Brexit in name only is the only kind of Brexit the EU will allow—at least, as long as they have anything to say about the matter.
It follows that it is now long past time for Britain to deny the EU any further say over the terms under which Britain leaves. But that implies the need for a radically different approach to the negotiation with the EU going forward.
Even so, Boris Johnson seems to have few options for changing course in the negotiation or, indeed, for actually getting Britain out. He can't get a better exit deal because he has no negotiating leverage with the EU and the EU has no desire to accommodate British concerns; he can't take the United Kingdom out without a deal because Parliament has forbidden him from doing so (via the Benn act); and he can't get an early election to resolve the impasse because the Labour party has deprived him of the votes he needs to call one. And, if he forces a vote of no confidence by ignoring the Benn Act's injunction to seek an extension on the current negotiation, he could find himself out of power. Indeed, pro-Remain forces in Parliament have threatened, in the case of a no confidence vote, to forestall an election by forming a 'unity' government within the 14-day period that the law allows.
The strategy has three parts. First, it recommends that the Prime Minister abandon any further attempt to modify former Prime Minister Theresa May's Withdrawal Agreement with the EU. Second, it urges Mr. Johnson to offer the EU a free trade and mutual residency deal as a radical alternative to the previously agreed May exit deal. And, third, it advocates that Johnson take his case for a new plan and approach to British voters, making clear that he is willing to face contempt charges if necessary to ensure that the U.K. comes out on October 31st in accord with the 2016 referendum.
Step One: Abandon Attempts to Modify the Withdrawal Agreement
Though Johnson has vowed to take the U.K. out of the EU with or without a deal on October 31st, he has until now continued to seek a modified exit deal with the EU. But as the EU reaction to his recent proposals makes abundantly clear, continuing to seek such a deal within the legal framework of the European Union Treaty (also known as "the Lisbon Treaty") leaves Britain with no negotiating leverage. Thus, to reestablish such leverage, Johnson must first announce that he will no longer pursue a deal within the legal framework of that Treaty.
Here's why. The legal machinery of the Lisbon Treaty has trapped Britain in a fruitless effort to secure an exit deal that satisfies EU negotiators. Clause 1 of Article 50 of the Treaty affirms that member countries may decide to leave the European Union unilaterally "in accordance with their own constitutional requirements." Yet the fine print complicates that process. Clause 2 requires a leaving nation to negotiate an exit deal with the European Commission within a two-year period, only after which time can that nation leave without a mutually agreed deal. Thus, when the May government triggered the mechanism for leaving by activating Article 50 of the Treaty in March of 2017, it subjected itself to the priorities and need for approval of the European Commission.
In 2016 or 2017, Britain, as a sovereign nation, could have circumvented this process by simply withdrawing from the Lisbon Treaty as it has done in the case of over 50 other international treaties since 1988.Nevertheless, May dutifully played by European Union rules and tried to negotiate Britain's way out.
That proved to be a mistake. The European Commission, long principally concerned to promote greater European political integration, did not agree to reasonable terms of separation. Nor did May herself, a long time Remain advocate, press for such terms. Instead, the deal that May brought back to Parliament required the UK to pay £39 billion for the privilege of leaving.
Astonishingly, however, after two years of negotiation the agreement made no provisions for genuine tariff-free trade between the continent and the U.K.—what both sides most need. May's agreement did make provision for "frictionless" trade of goods, but not of services. But even with goods it envisioned the application of tariffs by both sides pending a free trade agreement. Accordingly, negotiators on both sides simply deferred any attempt to make a such an agreement. May's agreement also ceded to the Luxembourg Court of Justice (LCJ) the power to interpret a "common rule book" that would govern all U.K.-EU trade, effectively keeping the U.K. under EU regulatory oversight. May also accepted continued U.K. compliance with a swath of EU social and customs regulations, ostensibly to prevent re-establishing a hard border between the two Irelands.
The May deal left Britain worse off than before. It would have subjected Britain to EU regulation, but without representation in the European Commission, Council of Ministers, or European Parliament. Not surprisingly, a revolt of Brexiteers in her own party ensured that the British Parliament would reject her deal three times, leading to the current impasse.
To extricate Britain from the trap of endlessly trying to satisfy EU negotiators, Johnson should not just announce (as he has already done) that he will seek no further extensions in the time for negotiating an exit deal, he should also declare that he will no longer seek to modify the existing exit deal or to secure any exit deal simply to comply with the soon to expire Article 50 timetable.
Step Two: Offer the EU a Free Trade and Residency Deal
Nevertheless, Johnson can explain that abandoning the current framework for getting an exit deal does not mean there will be no deal at all. Instead, he should announce that on November 1st—the day after the current extension ends—he will offer a different kind of deal to the citizens of Europe through the European Council of Ministers. In particular, he can announce his intent to offer a free trade and mutual residency deal.
His proposal need not be at all complicated. Johnson can reaffirm an offer of mutual residency for European Union citizens living in Britain and for British citizens living in Europe for a period of time to be determined in the negotiation. (The current Withdrawal Agreement does provide for such reciprocal residency).He should also offer the council a new and comprehensive free trade deal, but under the auspices of the World Trade Organization (WTO) rather than the Luxembourg Court of Justice. Johnson can inform the Council that if it rejects the offer, Britain will allow the imposition of tariffs under WTO rules and immediately seek free trade agreements with friendly non-EU countries, including the United States. He should also continue to affirm, before he makes the formal offer, that he will be taking the U.K. out of the EU on October 31st in spite of the domestic political opposition that he now faces.
Three recent news stories underscore the need for such a free trade and mutual residency deal as a matter of policy. First, the Daily Express has reported that German car makers are worried about tariff-free access to the British market post-Brexit. Second, El Pais has reported that the Spanish government has expressed concern about residency provisions for Spanish citizens living in the U.K. after Britain leaves the EU. Third, the Financial Times has explained that the Irish backstop is necessary in case that—after Brexit—the U.K. and the EU can't come to an agreement on free trade. Indeed, it's important to remember that the backstop was designed to hedge against the possibility of that the EU and the U.K. might fail to establish a free trade agreement after Brexit occurred.
All this suggests the need to flip the script.In his letter to Jean Claude Juncker detailing his compromise proposals, Johnson expressed his intent to forge a future post-Brexit relationship with the EU based upon a comprehensive free trade agreement.But why not offer the EU a free trade and mutual residency agreement now instead of trying to fix the current unnecessary, flawed and expensive (for the U.K.) exit agreement? Such a plan would satisfy the concerns of German car makers and the Spanish government as well as exporters, consumers and foreign residents on both sides of the channel.
Notice also that a free trade agreement would resolve the greatly exaggerated problem of the Irish border, since the Irish "backstop" is—ostensibly—needed only to harmonize trading practices between the two Irelands. If both the EU and the U.K. agree to continue trading freely just as they do now, but under common WTO rather than LCJ rules, no possible need will exist for either a hard-militarized border or onerous physical customs checks.
This proposal will also restore Britain's negotiating leverage. Indeed, Britain's negotiating position will be enhanced immeasurably when it repudiates the need for the EU to consent to an exit deal. Moreover, Europe needs the kind of free trade and mutual residency agreement that Johnson could offer much more than Britain does. Currently, nearly 3.5 million EU citizens live in the U.K., while only 1.2 million British people live in EU countries. Similarly, EU exporters sell far more goods and services to Britain than the reverse. If the U.K. left with no deal, EU exporters would have to pay an estimated £14 billion in tariffs per year to the UK, while UK exporters would only pay £6 billion to the EU. What's more, if Britain leaves without a deal, under WTO rules the British government could subsidize UK exporters for their tariff expenditures from the revenue the government would receive from EU exporters.
Moreover, unlike the May-agreed deal, a free trade agreement administered under WTO rules gets the U.K. out of the EU Customs Union. Consequently, such an agreement will allow Britain to make other free trade agreements with non-EU countries, giving Johnson additional leverage in any continuing negotiation with the EU. Further, once EU leaders know that they cannot prevent Britain from leaving they will be under pressure to heed calls from European exporters—German car makers, Italian clothiers, French winemakers and farmers—to get a deal that gives European vendors tariff-free access to the British market.
Step Three: Repudiate the Benn Act and Appeal to the Nation
All this implies that to gain leverage in the negotiation, Johnson must reaffirm that—in spite of the Benn act—he will take the U.K. out of the EU on October 31st.To date, he has both insisted that he will refuse to seek an extension in the case of a no deal outcome and also that he will obey the law. This has left commentators, members of his own party and the opposition guessing at what Johnson intends to do.
He should leave people guessing no longer. Instead, he should openly repudiate the Benn act and then take his case for doing so and for a new approach to the negotiation directly to the British people.
For starters, he should explain that, by passing the Benn act, Parliament has placed him in an impossible position. since he feels honor bound to respect the results of the referendum. Johnson should remind voters that, in addition to voting for the Benn act, Parliament also previously voted to leave the EU and that the vast majority of MPs who won seats in the last election did so after promising to support Brexit. He can explain that he has just as much legal responsibility to implement previous Parliamentary resolutions and to fulfill the mandate of the election and the referendum as he does to accept recent Parliamentary restrictions on his bargaining power. He can argue that contradictory Parliamentary mandates cannot prevent him from executing the clear will—or respecting the higher authority—of the British people as expressed in the Brexit referendum.
He can then present any other strictly legal arguments he and his ministers have identified for repudiating the Benn act. And, indeed, various legal justifications for repudiating, or legal means of circumventing, the Benn act have been floated. Nigel Farage and Conservative MP Bill Cash have suggested, that the legally agreed extension to the EU Withdrawal Act specifying that Britain will leave on October 31st supersedes British law until the U.K. actually does leave. Proponents of this approach suggest that by turning the EU's usurpation of U.K. sovereignty on its head, Johnson could render the Benn Act null and void and expose the fundamental problem with EU membership in one bold stroke. Other reports suggest that Johnson might petition the EU for an extension knowing that a friendly head of state in one of the other 27 EU countries may be poised to reject the petition, thus forcing the U.K. to leave in accord with the previously agreed October 31st deadline under Article 50.
Of course, Johnson should consider availing himself of any legal means or justification for getting Britain out of the EU on October 31st without, as now seems inevitable, an exit deal. But most importantly, Johnson must now justify his determination to leave without further delay by reference to a higher political principle. In particular, he should insist that the determination of the British people to take their country back and to reestablish the sovereignty of Parliament cannot be subverted even by an act of a specific Parliament itself.Johnson can rightly insist: 'I will not stand by and watch Parliament invoke the primacy of its own authority only to permanently surrender it, and to subjugate the will of the people who elected it, to a foreign and unelected pan-national bureaucracy.'
If, in addition, Johnson explains to the country that he is being forced by Parliament to seek the wrong kind of agreement (an expensive exit agreement with no free trade provision) and he has a plan for getting the right kind of agreement (a trade and residency agreement), he can portray Parliament's previous attempt to tie his hands as the ill-conceived power grab that it is. He can argue: 'Why should I be forced to seek an exit deal when that is not the deal that Britain or Europe needs?'
Taking his case to voters in this way will dramatically shift domestic political dynamics in his favor and will do so for several reasons.
First, by offering, and explaining the rationale for a different kind of deal he'll seize the high ground in the policy argument and reframe the issue from a choice between 'no deal or a future exit deal' to a choice between 'an unnecessary bad deal and a good one.'
Second, if EU negotiators signal an inclination to reject Johnson's new free trade offer, one that their own people clearly need, Johnson will further expose their unwillingness to allow Britain to regain meaningful sovereignty over its own affairs. That will reverse the current media, opposition and EU narrative that portrays Johnson as intransigent and unwilling to offer viable proposals or make significant concessions.
Third, by explaining why the UK has no need to continue seeking a separate exit deal, Johnson will render his refusal to seek one all the more justifiable. In support of this argument, he can remind voters that after October 31st Britain will have no remaining legal obligation to seek an exit deal under the Lisbon Treaty. He can also reemphasize that the country has no economic need for such an exit deal. Already concluded "micro-deals" with the EU—covering visas, border checks, trucking, financial derivatives, air travel and even Irish power generation—will minimize possible disruptions associated with a no-deal exit. Johnson can also point out that Mrs. May's agreed exit payment can be put to much better use. For example, £39 billion would cover nearly 8 years of anticipated increases in funding for the British National Health Service.
Fourth, describing the 'win-win' trade deal he intends to offer the EU could well bring him support from Labour MPs in Leave districts and from moderate Conservative Remainers. The reaction to his recent compromise proposals has revealed a willingness of some in Parliament to consider alternative proposals to resolve the crisis. That suggests that not all of the 327 MPs who voted for the Benn Act will necessarily oppose a constructive new approach. Once he explains the benefits of a free trade and mutual residency agreement for Europe and the U.K., Johnson may even attract enough support in Parliament to repeal the Benn act. After all, many of the Conservatives who oppose leaving with no deal have done so primarily because they want the U.K. and the EU to maintain "frictionless trade."Clearly, a free trade deal would accomplish that.
Barring such an unexpected resolution to the crisis, the Prime Minister should insist that he's determined to take the UK out on October 31st, even if that means facing contempt charges (and jail time). If he does, voters will rally behind him. And any attempt to hold Johnson in contempt for refusing to implement the Benn Act will only highlight the principled nature of his stand. The likely surge in polls for Johnson will serve as a deterrent to those currently scheming to form a temporary unity government following a vote of no confidence.
A Calculated Risk
Clearly, pursuing this course of action does not guarantee protection against a vote of no confidence should Johnson refuse to delay Brexit. The opposition may move against him, but if it does Johnson will have a sizable and growing portion of the electorate behind him. The Conservatives already hold a 9-12 point lead over Labour in the polls. Presenting a bold and principled plan for resolving the Brexit impasse will only make Johnson more popular.
Moreover, any precipitous action to remove Johnson will lead to more calls for an election, precisely what Johnson wants. That will place Labour under mounting pressure to allow one. Individual Labour MPs will not want to risk alienating voters by refusing to support an election if it seems that growing public support for an election makes one increasingly likely.
In any case, an election will eventually come if Parliament blocks Brexit. Opposition parties themselves have acknowledged that if they form a temporary government they will only have a mandate to negotiate another extension with the EU. After that, a new election must be called. Thus, either way, whether the opposition succeeds in temporarily deposing Johnson or not, any bold and decisive action that he takes now that increases his lead over Labour will ultimately help him achieve a meaningful Brexit.
Besides, at this point, what other choice does the Prime Minister have if he wants to deliver a meaningful Brexit?
Crunch Time
With the EU now certain to reject Johnson's compromise proposals and the October 31st deadline looming, Boris Johnson has just a few weeks to split the horns of his current dilemma. Either he must break his promise or—apparently—break the law. Either he can implement the will of the people as expressed in the 2016 referendum (which, arguably has the force of law) or he can ignore the law that Parliament has passed preventing him from doing so.
Yet, he cannot break the signature promise of his short tenure without losing all political authority. Nor does he have any reasonable hope of getting Brussels to consent to any additional proposed improvements in the May exit deal. Continuing to seek an exit deal from EU leaders who have no intention or incentive to budge is a fool's errand. Thus, Johnson's only real choice is to refuse to seek such an exit deal and an extension for getting one.
Nevertheless, if he just refuses to seek a new deal or extension, he will look like an unreasonable obscurantist and could face contempt charges or a vote of no confidence without gaining popular support for his pains. But if he refuses while announcing a bold alternative proposal and then explains why his refusal makes sense as part of a larger plan to resolve the crisis by delivering a Brexit that benefits both the U.K. and Europe, he can change the terms of debate. Once he explains why the U.K. does not need an exit deal for its own sake and instead offers a free trade deal to EU leaders that they will—at least, post-Brexit—be strongly incentivized to accept, the debate will no longer center on whether to leave with or without a deal, but instead on whether to accept a bad deal or press for a good one.
Thus, by eschewing further attempts to get the European Commission to agree to an exit deal that addresses British concerns, and by declaring, rather than negotiating, British independence, Johnson can cut the Gordian knot. If he also refuses to back down on seeking another extension and simultaneously presents a positive proposal for free trade with Europe, as well as a vision for a vibrant economy based on free trade with many other countries, he will reassure voters that Brexit will not only restore British sovereignty but expand prosperity. If he does, he will deliver a meaningful Brexit and ensure that voters support his efforts to get the deal that Britain—and Europe—really needs.
References:
How Theresa May Can Get a Better Brexit Deal and How Trump Can Help
The Best Brexit Strategy is the Leave First, And Then Deal (5/16/19):
https://thefederalist.com/2019/05/16/best-brexit-strategy-leave-first-deal/
Here's How Boris Johnson Gets the Brexit Deal the UK Really Needs (9/20/19):
Stephen Meyer is a Senior Fellow of the Discovery Institute, a public policy and scientific research organization in Seattle in the United States. There he directs the institute's Center for Science and Culture and also contributes to its foreign policy programs, where he writes on missile defense and the importance of strengthening key U.S. alliances. Meyer earned his Ph.D. from the University of Cambridge in 1991. In 1989, while finishing his Ph.D., he advocated a U.K-U.S. free trade agreement on the editorial page of The Wall Street Journal as a way of relieving pressure on Britain to relinquish sovereignty to the EU. Since then he has written numerous articles urging U.S. policymakers to support British efforts to reclaim sovereignty from the EU and on the need to strengthen the crucially important Anglo-American defence, intelligence sharing and trading alliance. His articles on these topics have appeared in The Wall Street Journal, The Stream, The Federalist and National Review. He has published many other editorials in national newspapers such as USA Today, The National Post (of Canada), The Daily Telegraph and The Los Angeles Times. His 2009 book Signature in the Cell was selected as a Times Literary Supplement Book of the Year.