Examining the role of the “Surrender Act” in Brexitist thinking - and how to debunk the myth surrounding it
Most of you reading this will be pro-European, so you probably constantly wonder how “We hold all the cards” and “Easiest deal in human history” squares with the way Brexit has turned out, at least in the mind of the Brexiter. Particularly as one reason given by Brexiters for the poor quality of Brexit thus far, when they aren’t trying to pin it all on Covid or poor Ukraine, is that the EU are ‘punishing’ the UK for wanting to leave the bloc. How would they have had the power to do this in the first place if we held all the cards?
The answer in a lot of cases is “The Surrender Act”. This refers to The European Union (Withdrawal) (No. 2) Act 2019, also known outside of Brexitist circles as “The Benn Act”. In Brexiter mythology, it has become the principle reason that the UK didn’t manage to get such a great deal from the EU and thus why Brexit has been a disappointment, even to them. It is a means of placing the blame for Brexit’s downsides onto Remainers who used this act of parliament to ensure Brexit was bad in the hopes we would someday rejoin. In other words, Brexit would have been wonderful if only the pesky Remainers hadn’t ruined it - and the “Surrender Act” is the means we used to pull this trick off.
This is obviously nonsense, but like all Brexit related hokum, it needs to be taken apart, bit by bit. Do not underestimate how important the “Surrender Act” myth has grown within Brexitism. In fact, if you wish to deradicalise a Brexiter, the explanation below might be one of your best starting points.
In the summer of 2019, Theresa May was finally deposed by her MPs. She was replaced, after an anti-climax of a leadership contest, by Boris Johnson. The big BJ faced several immediate problems. One is that he had a Withdrawal Agreement with the EU that had been rejected by parliament, twice, with a massive amount of antipathy towards it coming from within his own parliamentary party. The other is that the UK was due to be leaving the EU, with or without a withdrawal agreement, on October 31, 2019, which gave Johnson just over three months to either reach some sort of alternative Withdrawal Agreement with the EU and then get it through parliament, or receive an extension to the Article 50 negotiating period from the European Council. And that’s before you consider that parliament wouldn’t be sitting for at least half the time remaining to him to do any of this, what with summer recess and then the party conference recesses in the way.
In the midst of this problem comes “The Benn Act” or “The Surrender Act” as the Brexiters still like to call it. It’s called the “Benn Act” because it was put forward by Hilary Benn, who was at the time the Chair of the Exiting the European Union Select Committee. The Bill looked to do a couple of simple things. One was to make it so that if parliament did not either vote to agree on a formal withdrawal agreement with the EU, or vote to explicitly leave the EU with no withdrawal agreement in place before October 19, 2019, the prime minister would be forced to ask the European Council for an extension of the Article 50 time period of three months. Parliament voted to approve the bill and it became an Act of Parliament, receiving Royal Assent on September 9, 2019.
I will say here that I think in retrospect the Benn Act was a mistake. Not for any of the reasons Brexiters claim, but it was an error. The reason being, it actually got Boris Johnson off the hook. Had there been no Benn Act, Johnson would have been forced to ask for an extension of the Article 50 period himself. Or, hurriedly agree to the customs border down the Irish Sea and rush the new Withdrawal Agreement, exactly the same as the one we ended up with in the end, through parliament (I actually think this is the option he would have chosen). Or, taken us out of the EU on his watch with no withdrawal agreement whatsoever. Had he been stupid enough to have chosen this third option, the subsequent damage to both the country and the Brexit project would have been all on his shoulders.
Instead, he got to label the whole thing the “Surrender Act”, as if had Benn not stepped in with his bill, the EU would have caved in to every unreasonable demand we had and we would not have been forced to put a customs border down the Irish Sea, alongside any other number of Brexiter fantasy scenarios. Boris Johnson was handed a huge break with the Benn Act - and got to create a wider myth about “Brexit betrayed”, one that survives until this day.
What happened after October 31st came and went was that during the new extension period, Boris Johnson agreed with the EU to put a customs border down the Irish Sea. This got round the “Ireland problem” and he somehow convinced his MPs not to read the fine print and we left the EU on January 31, 2020 instead of October 31, 2019. The Benn Act had no discernible effect whatsoever on the Withdrawal Agreement we ended up signing.
It also indisputably had no effect on the actual trade deal, which was concluded on Christmas Day, 2020. Parliament, now in the hands of a large Tory majority instead of stuck in a very hung situation, repealed the Benn Act on January 23, 2020. It had no bearing on the trade negotiations as it was null and void by that point. The bad trade deal we got was down to Boris Johnson and David Frost going in with a poor strategy. They convinced themselves that the best thing to do was to keep negotiations short, taking everything down to the wire because the EU would cave into all of their demands to avoid a no deal situation at the last second.
As is well documented already - Inside the Deal: How the EU Got Brexit Done by Stefaan de Rynck, who worked on the EU negotiating team, as well as Barnier’s own book on the subject, are good reference points - the EU wanted to avoid no deal if it could be helped, but were ready to accept it if that’s the road the Brits were going to go down. In the game of chicken, the EU were not going to swerve. Partly because they understood that the “no deal” narrative was a complete bluff. They knew Johnson and Frost would never actually allow that to happen to the country but more than that, they were never going to allow that to happen to Brexit. No deal would have killed the project weeks after we left the EU in that instance.
As should be widely known but isn’t, it was the UK side that caved on everything at the last moment. Everything. Fishing rights being the most totemistic amongst them.
The Benn Act had nothing at all to do with this, even if you wanted to take the most favourable position to Boris Johnson and to the Brexit project still logically possible. It had no bearing on the Withdrawal Agreement - the question of what to do about the Irish border situation would still have been there without it - and definitely had nothing to do with the trade deal given it was repealed by parliament before the trade negotiations with the EU had even begun.
Maybe Brexiters just have to face up to the choice reality presents them with: either Brexit was always going to be terrible or Boris Johnson screwed it up. Or, as happens to be the case, both of those things are true. But you can’t blame it on any “Surrender Act”, I’m afraid. Like bendy bananas, “easiest deal in human history” and the UK-US trade deal, it must be consigned to the box of Brexit fantasies.
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Thanks for the interesting read Nick.
Just to clarify: when you say the Benn Act was null and void, despite being repealed after the trade agreement was reached - that's not because it was repealed but because it had already done what it was supposed to do and secured an extension for negotiations to take place? And because Johnson could, if he'd wished, have extended those negotiations - or ended them - thanks to his majority and regardless of the existence of the Benn Act. Have I understood that correctly?
Thanks for putting the “Ireland problem” in quotes. As we all know, it's a British or more accurately an English problem.
Likewise, the "Irish border" should also be in quotes. That is really the British border in Ireland.