I am very grateful to Philip Sinclair, Head of Maidstone Chambers, for this guest post which came about in this way:
You may have caught an interesting piece by David Allen Green in yesterday’s Financial Times. If you haven’t, it’s worth a few minutes of your time, but in essence his argument was that the Government is totally unprepared for the Brexit negotiations, not only does it not have a plan, it doesn’t even know what it should be planning for.
I tweeted my approval of the thrust of the piece, and Philip replied that he couldn’t have disagreed with it more. Someone suggested that he write a reply, which to his credit he has done overnight, seemingly while driving through France. He has very generously agreed to let me publish it below.
In the days after the Brexit vote, many Remainers were in shock and denial. Some remain in denial still.
In a ridiculous parody of the five stages of grief (Denial, Anger, Bargaining, Depression and Acceptance) Remainer Denial swiftly moved to Anger. Angry marches, hatred for Farage and Cameron, even hatred for the ‘ignorant masses’ who were clearly so stupid they oughtn’t to have been allowed to vote in the first place.
The Bargaining stage followed a little later. There was a petition for a second referendum and gleeful reminders that the referendum wasn’t legally binding (and so the result ought to be ignored). The ‘ignorant masses’ had clearly been misled and many surely regretted their ‘silliness’. There were even anecdotes.
REASONS FOR WALLOWING IN DEPRESSION HAVE DRIED UP
Then, the Depression set in. Some wallowed in it. Some still do. ‘We are all doomed’. The FTSE 100 had risen to surpass its pre-referendum position by this time, but the FTSE 250 was still to recover (it has since largely regained its previous position). Suddenly, the FTSE 250 which had never previously been afforded such notoriety was suddenly the only measure of economic health. Today the PMI (a survey of opinion) has taken on that mantle, Remainers blithely ignoring the fact that it dipped sharply in 2012 (and we all remember the appalling recession of 2012/2013) and forgetting that, as a measure of the economy, the PMI is significantly less reliable than the financial markets (where businesses risk their money, not merely the opinions of their purchasing managers).
Despite CEO after CEO publicly rowing-back from their pre-referendum predictions of disaster, staunch Remainers remained staunchly depressed.
And so, the final stage in the five stages of grief, Acceptance, has still to be reached by more than a few.
“LIKE MOODY DEPRESSED TEENAGERS”
Like moody, depressed teenagers, those unhappy few refuse to be cajoled into any semblance of optimism. Their World has ended. Brexiteers have ruined their lives. They didn’t get their own way and so they won’t participate. Some sulk. Some appear to seek the doom they so volubly predicted. The more animated seek ‘European’ nationality and the more intelligent (perhaps stuck in the Bargaining stage) seek to present insuperable obstacles.
They point to the lack of a plan. They repeat it over and over: ‘the Brexiteers had no plan’. They ignore the fact that the Brexiteers weren’t in power, didn’t call the referendum and therefore weren’t primarily responsible for preparing a plan.
Of course, it was the Remainers in power who ought to have had a plan. When a government calls a referendum with two options on the ballot paper, they really ought to have a contingency in the event of either result.
The Remainers also ignore the inconvenient fact that there was in fact a plan. Not much of a plan admittedly, but the only plan there could ever be at this stage of the process. And the plan? Leave the EU. What other plan could there be? Negotiate our departure? Of course – implicit. Negotiate new trade deals with the EU and the rest of the World? Of course – implicit. Details of our negotiating parameters and tactics? Of course not – imbecilic.
In a recent article, David Allen Green quotes the Canadian diplomat Jeremy Kinsman and argues that the Brexiteers were unready for Brexit. That may be so; it was, perhaps, a surprise to all. But he supports the point by referring to the Foreign Affairs Parliamentary Select Committee’s criticism of the ‘previous government’s… gross negligence’ in failing to plan for a potential Brexit. The flaw, of course, is that the previous government was not, on the whole, comprised of Brexiteers.
Mr Green also presents what he considers to be perhaps insuperable obstacles to Brexit. He argues that Article 50 was never intended to be a practical provision. It was an ‘ornament’ to appease those pesky eurosceptics – and he may very well be right about that.
He also rightly points out that, once triggered, the clock starts to run and two years is an insufficient period in which to negotiate the departure from the EU of a country like the UK. And, of course, this is precisely why we musn’t be rushed (perhaps by the threat from still-Bargaining Remainiacs) into triggering Article 50 too early.
The EU would clearly prefer us to trigger it immediately, or not at all. Part of our (necessarily ad hoc) plan must be to negotiate the best deal we can. We cannot do that without placing the EU under some degree of pressure. Delay in triggering Article 50 is surely one of the methods by which we should apply that pressure. I share Mr Green’s surprise that anyone would admit to being the author of Article 50; and I share his opinion that there is an enormous advantage afforded to a leaving nation in being able to decide when that Article might be triggered. The UK would be most poorly represented if ‘unofficial’ negotiations were not already taking place, despite what might be said publicly by certain EU officials.
BRITISH NEGOTIATORS WILL NOT BE LAMBS IN A SLAUGHTERHOUSE
Article 50, if sensibly employed, is therefore a workable Brexit mechanism and there is no need for a new treaty nor a fresh referendum, as Mr Green suggests.
Mr Green also argues that the UK has no Trade Negotiators. This is something that was recently said by Oliver Letwin and is therefore where Mr Green may have derived his information. However, it ignores the fact that there are experienced (and presumably rather disgruntled) negotiators working within the Department for Trade & Industry and the Foreign and Commonwealth Office. Indeed, one wonders what the FCO does all day given that one of its stated responsibilities is ‘building the UK’s prosperity by increasing exports and investment [and] opening markets’. In any event, the civil servants and diplomats at the DTI and FCO will hardly be Mr Green’s ‘lambs wandering into a slaughterhouse’.
In his article, Mr Green states that the UK is in a ‘weak and needy negotiating position’ when it comes to dealing with the rest of the World. This is clearly a matter of opinion, but it rather ignores the fact that the UK is either the fifth or sixth largest economy in the World. Given that there are a total of 196 countries in the World, I would venture to suggest that we don’t immediately present as particularly weak or needy.
There is also absolutely no need for the rest of the World to know what the UK-EU trade arrangements will be before committing to a trade deal, as Mr Green argues. Either we will negotiate a free trade agreement with the EU, or we will pay the 3% tariff which the EU ruinously imposes on the Third World, or we will end up with a compromise. In any event, our negotiations with everyone else will doubtless continue independently.
Mr Green also calls into question the competency of the British government to negotiate high-value, complex, commercial agreements under pressure. He cites the PFI deals largely negotiated under the Blair government. I am no supporter of PFI, but to argue that this new government is incompetent to negotiate international trade deals on the basis of previous PFI arrangements is a bit of a stretch.
The UK is a member of the WTO and will remain a member post-Brexit. I cannot find any reference to Peter Ungphakorn (apparently a WTO ‘staffer’) saying that there is ‘nothing simple about the UK gaining WTO status post-Brexit’ (as Mr Green cites) but I think we may be confident that it cannot be that tricky, given there are a total of 164 WTO member states.
So those are the ‘stark’ problems described by Mr Green in his recent article. He goes on to express the opinion that the new government lacks seriousness and that there is confusion in Whitehall. Of course, these are early days and Brexit is a major challenge. We are a mere five weeks from the referendum and our new government is less than three weeks old. Let us not be too quick to judgement. Despite what Mr Green implies, many of our existing and potential trading partners both within and without the EU are making encouraging noises and, unattractive though it may be, overseas aid has always been tied to trade deals and so statements linking the two are, at least, refreshingly honest.
Mr Green complains that the UK is yet to determine arrangements for existing EU nationals living and working in the UK and, of course, there are also UK nationals living and working in the EU. But, again, these are early days and this issue is hardly insuperable.
‘No one in government has a clue’, writes Mr Green – a rather sweeping statement that appears to have no basis in fact. If there is one thing this referendum has shown us, it is that vast numbers of people have engaged in the debate and that many believe that they have not just a clue, but the solution. Of course, as Mr Green points out, some Brexit supporters are demanding an immediate triggering of Ariticle 50 (and this is perhaps understandable given the demands of some Remainers that the referendum somehow be reversed), but the government is bound to have to juggle a number of competing interests.
“IN REALITY SCOTLAND CANNOT LEAVE THE UK”
The hurdles to Brexit are not accumulating. They were always apparent. Scottish and Northern Irish reluctance is a tricky, political problem. Theresa May clearly recognized this and demonstrated her recognition by visiting Scotland the day after her appointment. In reality, Scotland cannot leave the UK. It cannot survive on its own and it is unable to join the EU as an independent nation because it falls far short of meeting the necessary conditions. Its fate is sealed once Article 50 is triggered on behalf of the whole of the UK. The process is irreversible.
The border between Eire and Northern Ireland was open before either Eire or the UK joined the EU and so, apart from the recent need for security checks, there is little reason why anything should change and no reason at all should Eire choose to introduce security checks on its EU borders.
“SENSIBLE AND DIPLOMATIC”
Yes, Theresa May has spoken of a need for a UK-wide approach and she wishes to consult with our British Dependencies. This is only sensible and, frankly, diplomatic. It is not evidence of any intrinsic difficulty.
Mr Green concedes that Brexit is not impossible. However, he concludes that unless the government changes its complacent attitude, the task of extricating the UK from the EU (‘the single biggest exercise… in peace time’) will defeat it.
I don’t recognize Mr Green’s description of either the government or the task. I see no complacency. No one is pretending the task is easy. There are hard negotiations ahead. Doubtless, government lawyers will be working long into the night on the minutiae of the necessary legislative amendments. And, at the end of it all, we will have succeeded in freeing ourselves from those ‘inky blots and rotten parchment bonds’. We shall have negotiated exciting new World-wide trade agreements (where perhaps, we might pay less for our iphones and more for our coffee) and we might be slightly more insulated from the potential, pandemic Eurozone crisis.
Ultimately, I agree with Mr Green. The ‘denialism and wishful thinking’ (of the grieving Remainers) are not enough. Not enough to stop Brexit.