I was reminded of the fact that Brexit is often likened to a divorce when watching an interview with the Conservative Party Chairman @JamesCleverly today.

Cleverly’s argument seems to be that a UK-EU trade deal will be a much simpler and quicker affair than the deal between the EU and Canada (CETA), because the UK and the EU are already aligned, whereas Canada and the EU began from very different places.

At first glance, this sounds like common sense. Surely it will be easier for the UK and the EU to ‘consciously uncouple’ than for the divergent economies of Canada and the EU to ‘couple’ in a Free Trade Agreement? But there are two problems inherent in this back-of-fag-packet folksy ‘common sense’ argument. The first is that the economies of Canada and the EU were probably not as wildly divergent as many think, by dint of the fact that increasing amounts of regulation (or what the WTO describes as measures to reduce ‘technical barriers to trade’) is set at an international level. This is one reason why the argument that, outside the EU, the UK would have ‘no say’ over ‘the rules’ is a poor one. Those ‘rules’ are likely to come from Codex, ISO, UNECE, et al., not from Brussels.

The second problem with Cleverly’s argument is that while a UK-EU divorce might be relatively easy (due to our current alignment) if the UK’s aim were continued alignment, it doesn’t follow that it would make an agreement to diverge particularly easy. It is certainly not ipso facto easier. Any FTA is, in large part, an agreement to converge, not diverge. Negotiating such an FTA may take more or less time, but the direction of travel is towards convergence and agreement, not towards divergence and disagreement. The more there is of the latter, the longer the negotiations will take; the more of the former, the quicker an agreement will be reached. Indeed, it is hard to see how ‘disagreement’ could be enshrined in something called ‘an agreement’.

Cleverly is at least pretending that his party still wants an agreement, but despite talking about the ambition to ‘diverge’, the Conservatives are yet to tell us in which areas of the economy they wish to diverge from the EU, and for what benefit. I wonder if this confusion arises from the hope that ‘mutual recognition of standards’ will carry the day — basically the idea that the EU and the UK will just agree to accept one another’s standards. If a product is lawful in the UK then it will be lawful in the EU, and vice versa. This is currently the case for products not subject to a ‘harmonising law’, which is to say, vanishingly few (and we have the hated European Court of Justice to thank for this principle, laid down in the Cassis de Dijon case in 1979). But in general this is not how the EU works. What matters is ‘Conformity of Assessment’ — in other words, an agreement about how it is determined that products conform to agreed standards. EU states do not simply agree on the standards expected of a product, but agree on the manner in which those standards are assessed and guaranteed. EU states are happy to import UK cheese (say) because as an EU state with adequate food standards checks, the UK product will arrive at the border effectively ‘pre-approved’. Richard A.E. North explains this in more detail.

So Cleverly may be onto something when he claims that we could keep cheese exports to the EU flowing thanks to our common standards. But — and it is a big ‘but’ — the EU are unlikely to agree if the UK government says, in the next breath, “And we also want to ignore those standards”. The response then is going to be, “Okay, so we’ll have to check the cheese at the border, and we will need detailed paperwork, because we no longer have ‘conformity of assessment’.”

So let’s return to our marriage/divorce analogy. Any analogy will be flawed, because analogies always are — they are “X is like Y” examples, not “X is the same as Y” examples. Thus, trying to be clever with analogies rarely works. Leavers will suggest that Brexit is like trying to leave a restaurant when you don’t like the food yet not being allowed to leave for several years as the restaurant holds you prisoner. Remainers might say that Brexit is like a divorce where the husband needs to ‘feel free’ and then celebrates that freedom by promptly setting himself on fire.

That said, the marriage/divorce analogy is not a bad one. The UK and the EU, like many married couples contemplating divorce, went into the marriage full of optimism and hope over 40 years ago. Like all marriages, each partner thought — at the start — that they could change the other, but they soon realised that this was a vain hope. Over time, we had lots of arguments, but on the whole we were engaged in a common project which mutually enriched both parties. We often resented our partner’s meddling friends and relatives, but we carried on, at least for the sake of the children (our citizens) and in the knowledge that our marriage made us both stronger overall. As time wore on, we came to agreements about how we would arrange our financial affairs (the rebate), but increasingly felt that one partner put more (financially) into the relationship than they took out. We felt, perhaps, that our partner was slightly foolish in inviting all kinds of waifs and strays into the family home, and were suspicious of their desire constantly to widen our circle of mutual friends. Our spouse’s relatives were always coming to stay, and we tended to forget that our own relatives enjoyed reciprocal hospitality. Finally, we just felt that the relationship was unequal. We were putting more (financially) into the relationship, while our spouse was calling the shots, all based on stories told by their uncles Monnet and Schuman half a century ago.

The decision to divorce wasn’t a forgone conclusion, by any means. In fact we were in two minds about it — about 50:50, in fact — but when weighing up the pros and cons a few years back, we narrowly decided that divorce would be best for both parties. We filed for divorce, probably a little too hastily, before taking proper legal advice and instead listening to Mad Uncle Nigel. Also, because the ‘spouse’ in this divorce is actually millions of individuals, we were unable to agree upon what we wanted out of the divorce. We talked a lot about being ‘strong’ and ‘free’, but were unable to articulate how we might use that new-found freedom and gave shamefully little thought to how we would safeguard the children, wealth, business interests and relationships that we shared in common. Some thought that, given more than 40 relatively happy years together, we should agree to remain close (for the sake of the children, if nothing else) — to ‘consciously uncouple’ but remain friends. We hoped that we would return to the early days of our courtship, as part of that circle of friends (EFTA), when our earnest entreaties of love were rejected. Looking back, we can’t help wondering why we ruined a mutually enriching friendship by stampeding to the altar in 1973.

Other voices, however, (led by Mad Uncle Nigel and his adoring nephews and nieces Iain, Steve, Priti and Jacob — even Aunt Theresa was taken in) think that the EU spouse is such a hateful bitch (both Europa and Britannia are female, of course) that she must be spurned, humbled and —preferably — destroyed. And, it goes without saying, not a single relative should ever be given house-room ever again. We need to fly, free as a bird, and that means cutting all ties and breaking off contact entirely, even if we end up alone, impoverished and miserable. It is called a ‘clean divorce’, apparently. We must be prepared, not simply to ‘consciously uncouple’, but to become ‘self-partnered’.

There is something very sad about a marriage which fails, but it does not follow that divorce is always a bad thing. Even the Catholic Church, which does not even recognise divorce, points out that (civil) divorce can be a necessary condition of justice (for example, to ensure that an abandoned partner is provided for, or a battered spouse protected). It is possible, of course, that some couples who divorce will do so in a combative, mutually suspicious and ill-tempered manner, and still arrive at a good place eventually. But it seems far more likely that those who approach the dissolution of the marriage bond in a more cooperative frame of mind are likely to be happier at the end of it. Many couples have not only children in common, but also shared property, wealth and possibly business interests together.

If a couple can come to an agreement about those dependents and assets, then all the better. Even among the vicissitudes of a troubled marriage, they will have worked out some kind of modus vivendi that enables them to manage care of children, money, property etc. with equanimity. The more willing they are to continue these practical arrangements, the more smoothly their legal separation will be accomplished. The more they nitpick and bicker, the more they try to ‘diverge’, the more there will be to argue over. If they force it to law, then there may be a huge ‘winner’ and a significant ‘loser’, but there might also be two ‘losers’. Neither is going to make their future relationship easy. And, as always, one should first ‘think of the children’ — their future, their flourishing, and their happiness.

James Cleverly implies that a divorce (the UK leaving the EU) will be easier than a marriage (Canada and the EU doing a trade deal). That is not necessarily the case (indeed the opposite is more likely). It all depends, of course, upon how you negotiate the divorce. Marching into the court room demanding a post-divorce relationship which includes a continuation of marital rights while at the same time signalling your intention to ignore all of your former marital and familial responsibilities may not be the best strategy.

Afterword

Since writing this piece, I have come across the text of a speech — The Ghost of Christmas yet to come — given at Glasgow University by Sir Ivan Rogers, the former UK Permanent Representative to the EU. I’m pleased to say that he comes to much the same conclusion as I do on the question of whether divergence from a position of alignment makes trade negotiations easier or more difficult:

Sir Ivan Rogers, 25 November 2019

And:

Ibid.

And finally, in a nutshell:

Ibid.

As you would expect, he makes the argument rather better than I do, and from a background of real expertise in trade negotiations. It’s a long read, but well worth it.