Just Imagine if the EU was Behaving as the UK Is

Just Imagine… If the EU was Behaving as the UK Is…

Chris Grey poses a thought experiment around the Government’s plans to scrap part of the Northern Ireland Protocol

Imagine an alternative history of Brexit. In it, everything happens as it has in reality, except for one difference: after all the painful negotiations, the Withdrawal Agreement is finally signed by the EU and the UK, and it is legally binding both parties under international law – but immediately afterwards key figures in the EU start saying some extraordinary things. 

These things relate to what had once been a highly controversial issue that was central to the Withdrawal Agreement – the financial settlement. In the early days, many Brexiters insisted that no such settlement was due. Boris Johnson, for instance, said the EU could “go whistle” for the money. Some even said that, if anything, the EU should refund some of the money Britain had paid it over the years. But, even if reluctantly on the part of the UK Government, a settlement had been reached. 

But, within a few days of the signature, imagine that senior people in the EU said that, of course, this didn’t mean that the amount owed was fixed – really, the UK owed much more. At first, this would be pretty much ignored in the UK; dismissed as posturing within the EU in order to appease hardliners who want to punish Britain. 

Yet, gradually, it would emerge that the EU is deadly serious. How could this possibly be? 

In a series of articles and speeches the EU’s Chief Negotiator, and numerous EU politicians, would explain: the EU had only signed the Withdrawal Agreement because it was under internal pressure from some member states to reach an agreement, whereas others wanted to hold out and demand a bigger financial settlement. So the EU signed it without really meaning it and told those who were unhappy that, once it had done so, the EU would re-negotiate with the UK. In effect, the EU only signed under duress from its members and the UK took advantage of that temporary weakness to impose a fraudulent settlement upon it. In any case, the EU would claim that it never expected that the UK would insist that the agreement had to be followed to the letter.

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What, at this point, would the reaction of the UK Government and Brexiters be? Abject fury at the EU’s duplicity most likely. 

But imagine then that things get worse.

Suddenly, the EU starts saying that, while it had been agreed that the financial settlement would be paid over a ‘grace’ period of several years, it has now decided that this period will be changed – and it starts putting in larger and larger invoices. The UK Government is shocked, but takes no decisive action and goes along with what the EU has unilaterally decided, hoping that through negotiation the EU will see reason.

Briefly, some British Government ministers announce that, given the financial situation caused by the Coronavirus pandemic, the UK will suspend all payments of the financial settlement – though within a few hours of doing so they retract the threat, realising how unreasonable it was. But the EU sees this as proof of the UK’s dishonesty and says that it justifies it now increasing the entire financial settlement, as it had always intended.

Of course the UK would have a very easy response to so absurd a suggestion: the financial settlement is part of an agreement enshrined in international law, so if the EU doesn’t like it, then just too bad. Surely that’s obvious?

Imagine then that the EU makes a truly bizarre announcement. It says that it intends to pass an EU law unilaterally changing the terms of the Withdrawal Agreement so as to set a higher exit bill for the UK. What’s more, its own lawyers have said that this is fully legal in the circumstances, and that EU law takes precedence over international law. And, anyway, with war in Ukraine, is the UK really going quibble about paying a few billion pounds more than it had agreed?

Again, it is very easy to imagine the response of the UK Government and the newspaper articles that Brexiter columnists would be writing. The anger would be off the scale. The EU would be excoriated for its dishonesty and its contempt for international law. The UK would be seen as the well-intentioned, law-abiding victim of a grotesque act of bad faith. Certainly, it would not comply with something that self-evidently had no legal standing. Meanwhile, other countries, including no doubt the US, would be openly condemning the EU or quietly appalled by its descent into international pariahdom. 

This thought experiment isn’t a perfect analogy, but it captures the essence of how, in reality, the UK Government has behaved over the Northern Ireland Protocol.

Sauce for the Goose is Sauce for the Gander

The Northern Ireland Protocol is a contentious part of the Brexit settlement that formed a key component of the eventual Withdrawal Agreement. But, ever since the UK Government signed it, it has denied the meaning of the protocol in terms of the establishment of an Irish Sea border.

It has since been claimed that the Government regarded it as an unsatisfactory deal forced upon it by domestic political pressures – while telling voters it was a ‘great’ and represented an ‘oven-ready’ deal that would ‘get Brexit done’; and assuring Conservative backbenchers that it was a provisional deal that would be re-negotiated later. Crucially, it signed an international treaty that it has ever since sought to renege on.

If, as in the thought experiment, the EU had acted in this way then – with very good reason – the Government, Brexiter commentators and, indeed, the many people who had wanted to remain in the EU, would have been angry and disgusted.

In fact, it’s not even necessary to imagine all the twists and turns of the thought experiment – suppose, very simply, that the EU had sought to change any aspect of the Withdrawal Agreement, including the Northern Ireland Protocol, in a direction closer to its preferences and against those of the UK. The result, in terms of Government and Brexiter anger, would be similar – that it was intolerable for the EU not to stick to what it had agreed.

There’s a long-established precept in ethical philosophy to the effect that you should only act in a certain way if you would want, and accept, everyone else acting in that same way. That’s sometimes rendered as ‘do as you would be done by’ or just ‘what’s sauce for the goose is sauce for the gander’. However formulated, it applies here.

So anyone who can see how outrageous it would be if the EU had behaved as described in this thought experiment ought to recognise how outrageous the UK’s behaviour, in actual fact, is and continues to be. And to condemn it accordingly.