What does the legal row between Britain and the EU mean for Brexit?

The European Union is suing Britain. It was inevitable. The EU alleges the very process of drafting the Internal Market Bill violates a UK treaty obligation to conduct the separation talks “in good faith” (though the British whisper much the same about the EU’s supposed “extreme” threats to stop food imports into Northern Ireland). The EU further warns that if the Internal Market Bill is not altered it will be in active breach of the Ireland/Northern Ireland Protocol in the UK-EU Withdrawal Agreement (WA), a legally enforceable treaty. The EU has triggered the dispute procedure even before the end of the transition period. Thus, the EU Commission has issued a “letter of notice” giving the British a month to respond.  

Not the best start to Britain’s post-Brexit relationship with the EU, then, whoever happens to be right. The Dutch premier, Mark Rutte, has applied an optimistic spin to proceedings, arguing that such administrative activity, rather than the political kind, will tend to ease tensions. The “infringement” action will in any case take all involved past the end of the transition period, and the ultimate judgement may we’ll have no effective legal force if the “sovereign” UK chooses to ignore it (leaving aside reputations damage).

Yet these current ructions are signs of an increasingly sour relationship, and there are also substantial grounds for pessimism.  

First, it suggests that, like all the “best worst” celeb divorce cases, Britain and the EU’s has plenty of scope to turn even nastier. The withdrawal agreement was, after all, supposed to be settlement of the “divorce bill”, sorting out the loose ends before defining the new relationship. British ministers back in the early post-referendum days, when David Davis was Brexit secretary, were fond of saying that “nothing is agreed until everything is agreed”. By that be meant that the withdrawal agreement could all be sorted out, but would not actually get signed and ratified until the new UK-EU trade and security arrangements were agreed. Then they’d be sealed as a package. 

But the EUs insistence on strict sequencing and the slow pace of the talks meant that the WA had to be signed off before the new free trade and security deal was finalised. It was thus mislabelled by Boris Johnson as the “oven ready” Brexit deal. It was only ever part of an overall deal, and arguably the less important part. At any rate the UK lost key negotiating leverage over EU citizens’ rights (though that be brutal), and the £39bn “divorce payment”.

Now the danger is that the whole WA will unravel, with the probable exception of the sections on UK and EU citizens’ rights, which seem genuinely inviolable.  

But, our second question is why things have ended up here, apart from the British squandering all their negotiating time on leadership and general elections.  

Part of the answer is a lack of trust and mutual understanding, or comprehension. In any divorce trust tends to get eroded, but here it seems exacerbated by mutual incomprehension. The EU, a technocratic body comprised of compartment young heterogeneous democracies, has little instinct for the British concept of parliamentary sovereignty, which is not the same thing as sovereignty. The incompatibility of EU law making and the European Court’s power to strike down British legislation is not something that bothers them in the way it bothers some British people and politicians. They don’t “get” that part of the Brexit phenomenon; and to that extent do not know who they are dealing with, and are thus more likely to misjudge British motives and actions (such as the Internal Market Bill). The Europeans don’t see why they should treat the British the same as the Canadians over free trade; they are merely protecting the EU’s interests. The British don’t see why they cannot be treated the same as the Canadians – it is not “cricket” and fair play. The European Commission is all about formal process and legal protocols; the British prefer informal talks and politics.  

The British, for their part, wilfully refuse to accept the EU as a sovereign entity, and make annoying attempts to make side deals with Dublin, Paris and Berlin (probably deliberately mischievously). The British also seem not to understand that the EU economy is about five times larger than that of the UK, a significant fact of negotiating life, nor that British exporters need the EU more than EU exporters need the UK (proportionately). The UK has consistently underestimated the sanctity to the Germans, especially, of the EU single market, ironically a British invention. Nor do the British care to come to terms with how central and defining the European Project is to the French and the Germans – 70 years of integration as a conscious process of creating a federal superstate. Instead the British  seem to dream that the EU is about to break up after the British example; whereas Brexit has even made the Swiss, outside the EU, accept EU conventions about free movement of labour.  

The single market matters more than free trade with Britain, but Britain cannot believe it. Ever since the first UK application to join in 1961 the British have tried to be inside the European market on terms that suit Britain; and they have been disappointed when they cannot have their cake and eat it. It’s a tradition.  

The other underlying reason for the legal action, the failures of the trade talks and indeed the growing dissatisfaction with the Johnson government’s handling of Brexit is that Brexit is such an illogical, mutually contradictory, impossible sort of project that no amount of argy bargy in the conference chamber or the courtrooms can ever make sense of it. The WA and the Northern Ireland-Britain border was a clever way around the logical reality that part of the UK (Northern Ireland) cannot be like Schrodinger’s cat and simultaneously be inside the UK customs area and inside the EU customs union (and thus retain the invisible border with Ireland). All the British are trying to do now is unpick the logical puzzle again because, on second thoughts, they dislike it due to the fact they cannot have their cake and eat it. 

The years ahead, then, will see many other wrangles between the British and the Europeans, and about everything from French fishing boats trespassing in British waters to mutual diplomatic support against Russia. It may be that like some divorced couples they never speak again except through their lawyers. Ursula von der Leyen may as well come from a different planet, and it is no wonder they cannot “read” each other. This is how blunders unfold, building uncontrollably into outright hostility, and it is the story of the last four to five years, back to David Cameron’s misconceived effort to “renegotiate” Britain’s terms of membership of the EU. In diplomatic terms the British and Europeans are heading for a long cold war.