Anatomy of a miserable deal

Barnier’s Secret Journal should interest British readers due to the insights on whether the UK could have negotiated a better deal

This article is taken from the July 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

Michel Barnier’s account of his impressive handling of the Brexit negotiations on behalf of the EU is his opening bid for the French presidency. That is implicit in his final remarks that “people encourage me to take up my place in French political life” and became explicit in his publicity interview suggesting a French moratorium on immigration and leaving the Schengen Agreement.

La Grande Illusion: Journal Secret de Brexit by Michel Barnier, Gallimard, €23

That surpasses Nigel Farage’s electioneering, which Barnier describes as “detestable”. But what should interest British readers is the insights his Secret Journal provides about whether the UK could have negotiated a better deal.

The Brexit negotiations were doubly unique. First, in normal negotiations both sides seek a win-win outcome since to get a good deal means offering the other party a good deal, which also helps subsequent cooperation. But the EU’s overriding priority was to discourage others from emulating Brexit.

So, it was more important that Britain be seen to get a bad deal than that the EU get the optimum economic outcome. Barnier quotes President Hollande: “There must be a threat, a risk, a price to pay for leaving the EU.” So there was never any chance of Britain getting the win-win deal that Theresa May wanted.

The second unique feature was that most of the British side sympathised more with the EU’s objectives than with what the electorate obliged them to negotiate — “take back control of our laws, money and borders”. It was inevitable (and why I long opposed a referendum) that, if voters rejected the government’s advice, government would have the bizarre duty to implement what it (plus most MPs and virtually the whole civil service) opposed. At best their hearts were not in it; some hoped the decision could be reversed if the terms were painful. Evidently, that strengthened Barnier’s hand.

Theresa May (influenced by her then advisor Nick Timothy) initially called for a clean Brexit — leaving the Single Market, Customs Union, European Court jurisdiction and ending “vast financial contributions”. This “stupefied” Barnier — since it ruled out both the Norwegian (single market) and Turkish (customs union) options. But after losing her majority and her Eurosceptic advisor, Mrs May was left in the hands of officials. She was steered through a U-turn to accept both Customs Union and Single Market under the “backstop” in her ill-fated Withdrawal Agreement.

Theresa May has always preferred working with officials rather than fellow MPs. In any case, Barnier dismisses David Davis as disengaged from the negotiations whereas Olly Robbins “is decidedly the key man on the British side — who takes many risks to save the situation”. Barnier and Robbins dined à deux weekly — not a word of their discussions gets into this “Secret Journal”.

Whatever the complicity between British and EU officials, ultimate responsibility lies with our elected politicians. Collectively blinded by antipathy to Brexit, they failed to recognise that the EU’s priority was to make the UK pay a heavy price rather than to maximise EU trade and prosperity. Thus Britain offered concessions vainly hoping they would evoke reciprocity.

What’s striking about Barnier’s account is that whereas he justifies his position in terms of underlying principles, the UK (before David Frost took over) seems never seriously to have challenged those principles nor offered a coherent rationale of our position. Maybe officials realised that the more firmly our position was based on principles, the harder it would be to persuade ministers to shift towards the EU position.

Barnier’s first success was to control the timetable by insisting the UK negotiate the divorce terms (the Withdrawal Agreement) before we could negotiate our priority (a trade agreement). His justification was that the EU could not legally negotiate a trade agreement with a member state, so we must leave first. However, he insisted that, as well as money and citizens’ rights, the Withdrawal Agreement must cover trade across the Irish border.

I asked the Attorney General how it could be illegal for the EU to negotiate trade arrangements with the whole of a member state but legal with part of it? He replied that, though EU law ruled out a permanent treaty, it allowed a temporary arrangement. Mysteriously, the British side never challenged Barnier to admit that the Northern Ireland Protocol is temporary and will need to be replaced. Perhaps Frost will do so.

Our budget contribution was Barnier’s next target. This will shock Remainers as they have long convinced themselves that claims that Britain sent the EU substantial sums were a wicked lie. Barnier himself captions as “the premier lie” a photo of the Vote Leave bus’s slogan: “We send £350million a week to the EU.” True this is the gross figure and a regrettable exaggeration. But so is the €60-75 billion Barnier claimed the UK should pay towards programmes agreed during our membership. As the French say: “To exaggerate is not to lie.”

Liability for these ongoing sums is without precedent in international law yet was scarcely contested by our negotiators, apart from David Davis referring to the House of Lords study concluding that all liabilities cease on departure. Subsequently, a young British negotiator asserted “your legal analysis is broadly without merit”, but Barnier dismisses him as “flippant and arrogant” implying he had no supporting documentation.

The most contentious issue was the British-Irish border. The EU claimed the high moral ground by arguing that checks on goods crossing it would endanger the peace process. At no point did Barnier face the question: won’t checks on (the far larger volume) of goods between NI and GB have the same consequence?

The need to “protect the integrity of the EU internal market” was equally questionable given that Britain needs no checks to protect our internal market — but this, too, went unchallenged by British negotiators.

The UK seems never seriously to have challenged those principles nor offered a coherent rationale of our position

Instead, the British side committed early on to no checks — even virtual — on the island of Ireland. Hence either NI or the whole UK would have to stay in the Customs Union and Single Market — as the British establishment wanted. The way in which this commitment was rushed through without consulting the DUP (whom Mrs May depended upon to even be PM after her disastrous 2017 general election result) or even the Northern Ireland Office remains astonishing.

After Arlene Foster erupted, it led to May’s precipitate return to London leaving a “stunned” EU delegation and the draft agreement unsigned — despite “every word in it being weighed and the agreement of the British being transmitted by Olly Robbins”. But the pass had been sold.

Boris and Frost duly replaced May and Olly. Shackled by a Remainer Parliament, they could only replace the backstop by the problematic but ambiguous Protocol. Barnier clearly found Frost harder to deal with than his predecessors while negotiating the subsequent trade agreement. Frost’s speech setting sovereignty as his key objective changed the dynamic and Barnier did not secure his objective of a level playing field policed by the European Court.

Had Frost’s approach been applied from the start we might have secured a better deal. But our future depends on wise use of our sovereign powers, not EU good will. It remains to be seen if Michel Barnier finds the French electorate to be as willing a mark as the British government inexplicably were.

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