“The EU is demanding that any future British government pays significant financial compensation if they quit a post-Brexit “reset” deal as part of negotiations with Sir Keir Starmer”, according to this morning’s FT.
“EU diplomats have dubbed the stipulation a “Farage clause” that they said was designed to insure the bloc against the risk of Reform UK leader Nigel Farage becoming prime minister and making good on his threat to reverse Starmer’s attempted move closer to Brussels. Reform has promised to overturn the deal and Farage on Sunday told the FT he would not hand over any money to Brussels under any deal signed by Starmer. “I would break it,” he said.”
I’m not one of those inclined to get outraged at any suggestion that the Government is trying to ‘reverse Brexit’, for a couple of reasons. First, because Labour won the general election and in a democracy winning general elections comes with certain prerogatives when it comes to setting national policy; second, because I don’t think that making individual deals with the EU on specific issues necessarily obviates Brexit.
(Indeed, looked at one way it could be described as ‘having Europe à la carte, which we were assured just a few years ago was a Brexiteer fantasy.)
But if the Prime Minister is sincerely a believer in the current system of international law, and would like to maintain it, then he should recognise that this sort of thing is extremely irresponsible, and contributes to the increasingly direct clash between it and national democracy which will almost certainly not, in the long run, be resolved in the direction favoured by him and his counterparts in Brussels.
I have written about this tension a couple of times over the past year, but best described the nub of the problem in this article from 2023: “the more extensive the role of international law in domestic affairs, the more fetters it places on democratic politics and political action, the more problematic that is”.
The norms governing international law evolved in a very different era, when diplomacy was confined almost exclusively to the realm of foreign and military affairs. Indeed, prior to World War One (when everyone realised the catastrophic consequences of not knowing who had made what commitment to whom) it was perfectly normal to have secret treaties; these were only possible because treaties tended to have little-to-no impact on the internal life of a country, and there was thus no reason to tell anyone about them.
Yet over the past few decades the scope of international law has expanded enormously, to the extent that it is now very common indeed for ‘international’ commitments to impose extensive obligations on their signatories regarding the conduct of their internal affairs. These range from the big and obvious, such as our membership of the European Convention on Human Rights or previously the EU, to seemingly small ones such as the Aarhus Convention, which caps costs for legal challenges by environmentalists and thus makes a significant contribution to the impossibility of getting anything built in Britain.
But the norms governing international law have not kept up with its aggrandised scope, and the result is an increasingly unsustainable democratic deficit. In our case, any government can sign an international agreement which binds the UK’s hands on some area of domestic policy, and despite the fact that such an agreement is de facto a superior form of law to domestic statute (because it is not viewed as legitimately subject to supercession or repeal by the legislation of a future government) it is subject to a fraction of the democratic and institutional scrutiny to which a normal bill is subject.
Or to look at it another way: politicians or campaigners can impose domestic policy by signing an international commitment with no exit clauses, and then denounce any effort to subject that commitment to proper democratic decision-making as a challenge to (clutch your pearls with me) ‘the rule of law’.
This latest proposal from Brussels is in a very similar spirit. Europe’s negotiators know, because they have eyes in their heads, that they are negotiating with an extremely unpopular government which seems less likely by the day to win the next election, and that the party leading in the polls is viscerally opposed to the deal they’re trying to strike. So they are, quite explicitly, trying to insulate that deal against the (potential) democratic preferences of the British people.
Now this isn’t exactly new for the EU, of course. Nor, we must acknowledge, is there no merit to the other side of the ledger. Long- or at least medium-term certainty tends to be an object of diplomacy, and it is difficult to reconcile that with the political cycle of your typical democracy; that’s probably why so much diplomacy has been gradually shunted into institutional frameworks. Nor is purely domestic politics immune to what we might call the ‘paradox of entrenchment’: that entrenching something against normal political government is democratically legitimate only to the extent that a consistent majority, if not supermajority, agrees on that thing – i.e. entrenchment is legitimate only to the extent that it is unnecessary.
Thus, if advocates of international law truly wished to sustain a norm where international agreements enjoy their superior status and are insulated to some degree from domestic democratic pressure, it is extremely reckless of them to make agreements which are likely to be rejected in the near-term by a democratically-elected government.
Instead, the reflex seems often to be the opposite: as parties which question the status quo gain in popularity, its defenders double down on entrenching more and more of the status quo behind international agreements, at once broadening and deepening the very conflict they denounce so fiercely. Such behaviour is revealing, because it suggests that their actual motivation is precisely the short-circuiting of the democratic process; to write ‘we win forever’ into a treaty, and then allege that any challenge to that victory is a breach of the rule of law.
One can understand why Brussels must find it frustrating to have the UK as a neighbour, especially when it has (so far) managed to in all other cases insulate the workings of the European Union from the vagaries of the internal politics of its members.
But if diplomacy really is about the long term, its negotiators ought to realise that exploiting a feeble and compliant government to try and screw a bit of cash out of a future, Farage-led Britain is going to do no good at all for our long-term relations – and Sir Keir Starmer that both his negotiating partners and the voters might respect him a little more if, in his quest for deals with Europe, he showed just a little more spine.