Brexit: eyes off the ball

Friday 18 September 2020  

I should think by now that everybody is bored silly by the posturing, plotting and pontificating over the EU-UK trade negotiations. There was a taste of that in yesterday's piece, but things don't get better.

Currently, the Financial Times is trying to put things together, having Commission President, Ursula von der Leyen, telling us that she was convinced a trade deal with the UK was still possible, despite the "distraction" of Johnson's UK Internal Market Bill.

She concedes that the Bill came as a "very unpleasant surprise" to the EU and it was now necessary for London to restore trust and remove the question mark it had put over the treaty. But, she says, the EU-UK talks should continue, with the dispute kept at arm's length.

This fits with the more general understanding (or view) that the EU intends to adopt a "keep calm and carry on" policy, not allowing Johnson's tactics to lead them to take their eyes off the ball.

This, it is a calm, emollient von der Leyen who says, "I am still convinced it [the trade deal] can be done". She adds: "It is better not to have this distraction questioning an existing international agreement that we have, but to focus on getting this deal done, this agreement done — and time is short".

This now seems to be firming up into a defined strategy, where – in medical terms – Johnson is treated as an abscess, encapsulated and confined, and not allowed to interfere with the main body of the talks.

These wonderful creatures, the anonymous EU diplomats, are therefore wheeled into position to say that the EU will not take decisions on whether to initiate legal action against the UK over the Internal Market Bill until after the next formal round of trade talks. These are scheduled to take place at the end of this month.

These same diplomats, apparently, are suggesting that the EU wants to channel the dispute over the Bill into the EU-UK Joint Committee, although this seems less than plausible, as there is hardly time for dispute settlement proceeding to take place.

However, on the Churchillian premise that jaw-jaw is better than war-war, if the UK could be prevailed upon to raise its concerns with the Joint Committee, then this would be progress, of a sort.

However, Maros Sefcovic, the EU's co-chair on the Joint Committee, has written to his UK counterpart, Michael Gove, formally in inform him of the EU's view that the bill would breach the Withdrawal Agreement, "if adopted as proposed".

In the letter, dated 11 September, Sefcovic has reiterated Brussels' call for the UK to withdraw from the Bill by the end of this month those measures that would override the treaty by the end of September.

The language, though, has been carefully chosen to give the UK room to back down. Brussels is thus not demanding that the legislation is scrapped in its entirety. Amendments would be sufficient.

For all that, there is no sign that Johnson is willing to make even the slightest of changes to the Bill, but if his idea was to get the EU throwing its toys out of the pram, then it's not working.

From our anonymous EU diplomat, we learn that the EU is determined not to "overreact". The negotiations are being conducted on two separate tracks: "one is the one which the UK has decided to violate, and the other is the future relationship".

It is also claimed that there has been some progress in last week's round of future relationship talks, despite the dispute over the Internal Market Bill, with some movement on "the vexed issue of access to British fishing waters". Whether that is real remains to be seen.

That apart, the stalemate continues, with EU officials noting that, while trade talks will continue, an agreement cannot be signed off until the dispute over the Bill is resolved. And if representatives of the European Parliament are to be believed, any deal would not be ratified.

All of this, though, is taking eyes off a quite different ball – the state of UK preparedness for the end of the transition period, with or without a trade deal. The Road Haulage Association, for instance, is complaining that a recent meeting with Michael Gove – he of the Joint Committee – on post-TransEnd arrangements – has been a "washout".

The Association says there as been "no clarity" from the senior minister on how border checks will operate when the transition period ends.

This comes after Logistics UK, formerly the Freight Transport Association, last Wednesday warned that businesses were facing a "massive blow" after discovering that the Government’s Smart Freight system would not be out of testing mode by January when British exports face new border regulations.

Of more recent concern is an impassioned plea from the British Meat Producer's Association, about the lack of preparation of the administrative systems needed to facilitate meat exports to EU Member States.

For a while, the focus has been on the EU's third country listing but, as I have pointed out, this is only the first part of a three-tier system. Now it transpires that even if the listing is in place, there are other major issues which need attention..

Firstly, there is the problem of Export Health Certificates, which will now be required for exports to EU Member States. Currently only required for third country exports, a massive increase in volume is expected, for which the government is proposing a new, online issue system. However, that system is still in the development stage and has not been stress tested to find out if it will work.

Then, before an Export Health Certificate can be issued for a consignment, it has to be inspected and signed off by an Official Veterinarian. Currently that work is only undertaken on a small number of large consignments, but after 31 December all meat exports will need to be inspected prior to dispatch.

This will require an army of new vets, trained for the work, when there are already too few vets and some of those will be drafted-in to administer millions of Covid-19 vaccinations along with pharmacists, dentists and student doctors.

Next in the litany of woes is the absence of agreed Health and ID Marks, which must be affixed to carcases and meat packages, before they can be sold in EU Member States. It may be that existing marks can be used, but the industry needs definitive confirmation.

Here, December is too late for this to be sorted. British meat companies risk losing orders from EU customers from September onwards. This is because orders, particularly from European retailers, are planned 3-4 months in advance to allow for pricing, barcoding and any promotions that need to go on the packaging.

Finally, there is an issue with "groupage" - mixed loads of products. As it stands, much of the meat exported is grouped together with other products, to make complete loads, reducing transport costs.

But the existing guidance from government on groupage only applies to pre-packed products destined for retail. It excludes fresh and frozen meat which accounts for a large proportion of the product British meat processors currently send to Europe.

The industry, therefore, needs assurance that a workable scheme will be in place which allows groupage and mixed loads to continue to be sent to the EU. Importantly, the industry needs advanced knowledge of the new arrangements so companies can adapt in good time.

It is the "nuts and bolt" issues such as these which are being neglected, many of which require the broader "big picture" agreements to be concluded before the details can be settled. And if customers are lost for want of such details being settled, they may never be regained.

And this is just one industry. Each sector has its own problems and concerns, largely ignored by a technically illiterate media, but they are not going to go away. Unless this government gets its act together – which hardly seems likely, given its track record – the shitstorm we are about to experience will make Covid look like a walk in the park.

Also published on Turbulent Times.

Richard North 18/09/2020 link

Brexit: it will be nasty

Thursday 17 September 2020  

Given that yesterday, Ursula von der Leyen delivered her 'state of the Union' speech, the very speech about which the Telegraph so reliably informed us was going to be a turning point.

What we were told was that the European Union's chief Brexit negotiator Michel Barnier was "set to be sidelined by EU leaders in a bid to get a breakthrough in the negotiations about a trade treaty with the UK".

"Representatives of the bloc's 27 member states", the Telegraph predicted, "expect Ursula von der Leyen, the president of the European Commission, to pave the way for heads of state and government to intervene in the deadlocked talks in a 16 September flagship speech".

So the narrative went: "EU leaders are hoping that by stepping in to get the talks moving, it will help bridge the deep divides between the two sides, allowing Mr Barnier and his UK opposite number Lord Frost to agree the details".

And here's what actually happened. "We need new beginnings with old friends – on both of sides of the Atlantic and on both sides of the Channel", von der Leyen said, nearly three-quarters of the way into her speech.

Speaking in the European Parliament in Brussels, she reminisced about the last days British MEPs were present. ''The scenes in this very room", she recalled, "when we held hands and said goodbye with Auld Lang Syne spoke a thousand words. They showed an affection for the British people that will never fade".

"But with every day that passes", she added, "the chances of a timely agreement do start to fade. Negotiations are always difficult. We are used to that. And the Commission has the best and most experienced negotiator, Michel Barnier, to navigate us through". But those talks, she said, "have not progressed as we would have wished. And that leaves us very little time".

Addressing the MEPs directly, she added: "As ever, this House will be the first to know and will have the last say. And I can assure you we will continue to update you throughout, just as we did with the Withdrawal Agreement". And then she continued:
That agreement took three years to negotiate and we worked relentlessly on it. Line by line, word by word. And together we succeeded. The result guarantees our citizens' rights, financial interests, the integrity of the Single Market – and crucially the Good Friday Agreement.

The EU and the UK jointly agreed it was the best and only way for ensuring peace on the island of Ireland. And we will never backtrack on that. This agreement has been ratified by this House and the House of Commons. It cannot be unilaterally changed, disregarded or dis-applied. This a matter of law, trust and good faith.
Pulling in a name from the past, she added: "And that is not just me saying it – I remind you of the words of Margaret Thatcher: 'Britain does not break Treaties. It would be bad for Britain, bad for relations with the rest of the world, and bad for any future Treaty on trade'".

"This was true then, and it is true today", she then said: "Trust is the foundation of any strong partnership. And Europe will always be ready to build strong partnerships with our closest neighbours". That was it: no sidelining of M. Barnier; no leaders intervening; no paving of ways; no "deep divides" bridged. Like the rest of us, the Telegraph had no real idea what is going on. And we still don't really know what's going on, any more than does the paper right now.

But "two diplomatic sources" have told Reuters that Frost has been trotting off to Brussels to offer "tentative concessions on fisheries". Some have suggested that the Jersey fisheries might be on offer – something which the Telegraph has also punted. The Express, on the other hand, has it that the prime minister's negotiators are under strict orders "not to depart" from his promise to deliver a significant increase in fishing opportunities for UK boats.

This paper would have it that Barnier himself had "leaked" the suggestion Frost had made a "tentative" move towards meeting the EU's fisheries demands. But a government spokesman now says: "We have consistently said that we will not accept any proposals which compromise UK sovereignty over our own fishing waters". He adds: "There has not and will not be a departure from Britain’s position so far that will take back control of its territorial waters in the Channel next year".

So, once again, we're going round in circles, claim and counter-claim, leaving us no further forward, and with not the slightest idea of what is really going on.

There are others, some of whom think they know mores, saying that the 27 member states are said to have registered "cold fury" at Johnson's plan to breach the Withdrawal Agreement, claiming that the EU intended to block food imports into Northern Ireland from Britain.

One of those ubiquitous anonymous sources who wasn't actually at a meeting of EU diplomats, but who was "briefed" about it, then tells a newsman who tells us that "There was a lot of dismay on that. People are furious, but it is a cold fury. They know that the only option is to keep calm and carry on".

And we're still none the wiser about the third country listing. A "working paper" states that Barnier has "clearly stated" that the EU is not refusing to list the UK. "If the future UK rules on food imports fulfil all applicable conditions", it says, "then the European Union would proceed with the listing of the United Kingdom as a third country for these purposes as of 1 January 2021".

Up to now, though, says the paper, "we do not have full clarity from the UK government regarding its future regime, in particular for imports into the UK". But London has informed Brussels that it will apply the EU's Official Controls Regulation(s). And, incidentally, the UK hasn't listed the EU Member States as approved to export to the UK yet.

Perhaps the only clarity we're getting is from Ivan Rogers who is taking the very risky move of making a prediction.

Britain, he says, will leave the post-Brexit transition at the end of this year with no deal, describing Boris Johnson as a "Trumpite politician who wants the EU to fail".

"Johnson and his team persuaded themselves that the EU would be so panicked that they would give in eventually", Rogers says, "and it didn’t happen. Boris didn't, I believe, start off as a true no dealer, but he seems now formally in the camp with Dominic Cummings: 'to hell with it, we should walk away'". He adds that Johnson "is quite Trumpite in method; he was always fascinated by Trump and his strategy to take the other side by surprise and destabilise it".

Of the talks in general, he says: "The UK conduct of the of this set of negotiations has, if anything, been even more dismal than the UK conduct of the previous set of negotiations, including in August by demanding negotiating sessions and then having nothing whatever new to say in them".

Back in prediction mode, he says: "The EU will say that they tried to do a deal but the UK never accepted the obvious automatic consequences of leaving the customs union and single market, they had better now see and experience those consequences and they need a period of sobering up whilst they realise just how difficult it’s going to be as a third country without any preferential deal".

"On the British side", he predicts, "if we have done this deliberately, Johnson will be firing up to get people behind him, it will be full on, a story every day in the press about resisting the humiliation imposed, 'we are not going to be treated like this by the evil empire'. It will be nasty".

So there you go: "It will be nasty". Don't say you haven't been warned.

Also published on Turbulent Times.

Richard North 17/09/2020 link

Brexit: another crisis over?

Wednesday 16 September 2020  

I am still puzzled by the prime minister's original claim that the UK Internal Market Bill was intended to "break the blockade", so to speak, in the event that the EU does not grant third country listing to the UK.

This, as we know, is the first of a three-stage procedure required before the UK can export live animals or products of animal origin from Great Britain to EU Member States and – through the exigencies of the Irish Protocol - to Northern Ireland.

If there was any doubt that this so-called "blockade" was real, we at least have a semi-literate piece in the Telegraph to confirm what we know. Headed, "Brussels warns lobby groups that UK food exports to EU and Northern Ireland could become illegal", it tells us that "British cheese, lamb and beef will be outlawed unless UK gives details of its future food rules by November".

Where the article departs from reality is in asserting that "Brussels has warned farmers, businesses and animal welfare campaigners that it may be forced to ban all British exports of live animals and animal products such as cheese, beef, eggs, chicken and lamb from 1 January".

We then learn that, "European Commission officials told a meeting of trade associations and other stakeholders in Brussels on Friday that the ban was inevitable unless the UK gives details of its future animal health and food safety regime by the end of October".

I sincerely hope that no European Commission officials expressed themselves in such lurid and inaccurate terms – but then it is difficult getting the staff these days. The point – which should have been recognised by journalist James Crisp who wrote the piece – is that we're not dealing with a ban, as such.

Third country listing is an administrative procedure, requiring an applicant country to conform with detailed requirements set out in EU law. In much the same manner as an applicant for a driving license has to comply with certain requirements – such as passing a driving test – the applicant country must "pass the tests" or it doesn't get listed.

But in the same way that you would not suggest that someone not qualifying for a driving license was "banned" from driving – which is an altogether different process – there is no question of the UK being banned from exporting. Basically, by choosing not to comply with the requirements, we will have excluded ourselves from the EU market, and from exporting to Northern Ireland. Unfortunately, The Sun is also using the same "ban" terminology.

In this instance, the issue seems to revolve around our import controls for animals and animal products. The UK government has opted to relax controls for the first six months of the year and then, post I July 2021, has not specified in detail what the control regime will be.

Entirely reasonably, the EU is taking the view that unless the UK's regimes comply with its statutory requirements – by the end of October – it will not list the UK. Indeed, it cannot. Under WTO anti-discrimination rules, it cannot treat the UK differently from any other third country.

Then, if it did not require full compliance, it would be in breach of its own rules. As such, the Commission would be open to ECJ proceedings by any other third country trader (or government) or even traders in EU Member States – with or without the support of their governments.

We do, incidentally, need to move past the schoolyard defence, complaining about the Commission upholding its own rules because it also breaks them elsewhere. The tu quoque defence was ruled out during the Nuremberg trials and applies to neither international nor domestic law.

Should the UK decline to conform with the listing requirements and is thus unable to export from Great Britain to Northern Ireland, it could of course, invoke Article 16 of the Protocol (safeguards), arguing that its application "leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade".

In that case, supplies could be shipped as normal, although the EU could then take "proportionate rebalancing measures as are strictly necessary to remedy the imbalance". This might include sanitary checks at the Irish Republic border, which would rather defeat the object of the Protocol.

Johnson, however, initially claimed that his way past the "blockade" was the UK Internal Market Bill which, if it comes into force, includes a "mutual recognition" provision which he hinted could be used to circumvent that lack of EU listing.

Although Johnson has apparently abandoned that idea, he has not ruled out taking action, expressed during Monday's debate in terms of: "we are not taking powers in this Bill to neutralise that threat, but we obviously reserve the right to do so if these threats persist…".

Reading this literally, it would suggest that Johnson still has ambitions of using the Bill to break the "blockade". His response could thus be read as "we reserve the right [to take powers in this Bill] if [the] threats persist". Looking into this, there is a mechanism available to him, which he chose not to disclose when challenged by Ed Miliband. As it stands, in the Bill Clause 11(1) rules out the application of "market access principles" to Northern Ireland, but this exclusion can be modified by 11(2).

This sub-Clause allows the application of the mutual recognition principle for goods in relation to "all qualifying Northern Ireland goods" as if they were produced in, or imported into, Northern Ireland. In other words, if animals or animal products were defined as "qualifying Northern Ireland goods", they could (in theory) be imported into Northern Ireland, in breach of the Protocol.

Now, the point at issue here is that "qualifying Northern Ireland goods" have not yet been defined. That power lies with a "Minister of the Crown" by way of Regulations, written into Section 8C of the European Union (Withdrawal) Act 2018, as amended by the 2020 Act (Section 21).

Interestingly, Bill Cash would then have it that Section 38 of the 2020 Act would apply, asserting Parliamentary sovereignty over section 7A of the 2018 Act (other directly applicable or directly effective aspects of the withdrawal agreement).

Whether this is what Johnson has in mind can only be a matter of speculation. But it does appear that there will be a mechanism for him to use if the UK Internal Market Bill becomes law, without him having to go back to parliament. To what extent the EU is aware of this also has to be a matter of speculation, but it can hardly be a surprise that it has reacted sharply to the publication of the Bill.

However, the Express is asserting that the government is planning to publish a draft food safety bill next month, which will transpose Withdrawal Agreement commitments on animal and plant health into UK law. In that is the case, and the conditions of the Official Control Regulations (Regulation (EC) No 854/2004 and Regulation (EC) No 882/2004) can be met, then another crisis, such that it is, will be over.

But if it really is that easy, one has to wonder why Johnson has raised the temperature in the way that he has, unless – as some believe - he thinks that this is the way to break the current negotiation logjam. At the end of the month, when the draft bill is unveiled, will it be smiles all round, followed by the conclusion of a deal?

Also published on Turbulent Times.

Richard North 16/09/2020 link

Brexit: his deal … his mess … his failure

Tuesday 15 September 2020  

This is Johnson in the Telegraph on 12 September – just three days ago, under the heading "Let's make the EU take their threats off the table and pass this Bill":
We are being told that the EU will not only impose tariffs on goods moving from Great Britain to Northern Ireland, but that they might actually stop the transport of food products from GB to NI.

I have to say that we never seriously believed that the EU would be willing to use a treaty, negotiated in good faith, to blockade one part of the UK, to cut it off, or that they would actually threaten to destroy the economic and territorial integrity of the UK. This was for the very good reason that any such barrier, any such tariffs or division, would be completely contrary to the letter and the spirit of the Good Friday Agreement.

By actively undermining the Union of our country, such an interpretation would seriously endanger peace and stability in Northern Ireland. This interpretation cannot have been the real intention of those who framed the protocol (it certainly wasn't ours) – and it is therefore vital that we close that option down.

We want an agreement in the Joint Committee on how we can implement the protocol. We have consistently shown that we are willing to help our friends – to the extent that is possible and reasonable – to protect the integrity of their Single Market and to keep a fluid North-South border.

But we cannot leave the theoretical power to carve up our country – to divide it – in the hands of an international organisation. We have to protect the UK from that disaster, and that is why we have devised a legal safety net – in the UK Internal Market Bill – to clarify the position and to sort out the inconsistencies.

This Bill protects jobs and growth across the UK by preventing barriers to trade between the nations and regions. It means that anything approved for sale in Scotland or Wales must be good for sale in England or Northern Ireland, and vice-versa.

The Bill gives freedoms and certainties for businesses and citizens that were previously set out in EU law. That is why, as we now come out of the EU, it is absolutely vital. It is now also clear that we need this Bill to protect the free flow of goods and services between NI and the rest of the UK, and to make sense of that commitment in the EU withdrawal agreement – that NI is part of the UK customs territory. It is therefore crucial for peace, and for the Union itself. We must get this Bill through.
Point 1: he postulates that the EU might actually stop the transport of food products from GB to NI. Point 2: he asserts that "we have devised a legal safety net – in the UK Internal Market Bill – to clarify the position and to sort out the inconsistencies". Point 3: he states that "this Bill … means that anything approved for sale in Scotland or Wales must be good for sale in England or Northern Ireland, and vice-versa". Point 4: he declares that: "we need this Bill to protect the free flow of goods and services between NI and the rest of the UK".

By any measure, and by any ordinary use of the English language, the man is referring to Clause 2 of the UK Internal Market Bill, and asserting that this is necessary to beat the EU's supposed "blockade".

Now we come to yesterday's debate. Again, he asserts that:
… the EU has said … it might very well refuse to list the UK’s food and agricultural products for sale anywhere in the EU. It gets even worse, because under this protocol, that decision would create an instant and automatic prohibition on the transfer of our animal products from Great Britain to Northern Ireland.
But now he says of this "extraordinary threat" that "we are not taking powers in this Bill to neutralise that threat, but we obviously reserve the right to do so if these threats persist…".

Thus, we see a complete volte face from this prime minister, completely contradicting something he, himself had written in a newspaper only days earlier. But just in case we have misunderstood what has been said, we have Ed Miliband (a Labour ghost from the past) who, in a brutal dissection of the prime minister's inconsistencies, says:
I do not know whether the House noticed - which is that this Bill does precisely nothing to address the issue of the transport of food from Great Britain to Northern Ireland. It is about two issues where the Government are going to override international law: exit declarations, Northern Ireland to GB, and the definition of state aid relating to Northern Ireland. If the Prime Minister wants to tell us that there is another part of the Bill that I have not noticed that will deal with this supposed threat of blockade, I will very happily give way to him. I am sure he has read it; I am sure he knows it in detail, because he is a details man. Come on, tell us: what clause protects against the threat, which he says he is worried about, to GB-to-Northern Ireland exports? I give way to him.
When a decidedly miserable-looking Johnson declined to respond, Miliband triumphantly declared – as well he might: "There you have it: he didn’t read the protocol, he hasn’t read the Bill, he doesn’t know his stuff.".

But it is there in the Bill, in Clause 2, which was what Johnson was asserting on Saturday, although he has now abandoned that claim.

That leaves him going to the wire on what Miliband rightly asserts are two issues: exit declarations, Northern Ireland to GB, and the definition of state aid relating to Northern Ireland. And for that, he would break international law and bring down this huge surge of criticism and anger.

But it says something that neither media nor politicians seems to have tied together Johnson's Telegraph statement and his subsequent denial in the House. If he truly intended the Bill to break the EU's "blockade", and is now retreating from this position – which he self-evidently is – then this has to be the mother of all U-turns.

This prime minister has marched his zombies to the top of the hill – where they dutifully supporting him – and is now marching them back down again, having not even addressed the issue over which he has raised the alarm.

Bluntly, the prime minister really has nowhere to go on this. Or, as Miliband put it:
The Prime Minister is coming to the House to tell us today that his flagship achievement - the deal he told us was a triumph, the deal he said was oven-ready, the deal on which he fought and won the general election - is now contradictory and ambiguous. What incompetence. What failure of governance.
In full flow, he continued:
How dare he try to blame everyone else? I say to the Prime Minister that this time he cannot blame the right hon. Member for Maidenhead (Mrs May), he cannot blame John Major, he cannot blame the judges, he cannot blame the civil servants, he cannot sack the Cabinet Secretary again. There is only one person responsible for it and that is him. This is his deal. It is his mess. It is his failure. For the first time in his life, it is time to take responsibility.
And thus he concluded: "It is time to ’fess up: either he was not straight with the country about the deal in the first place, or he did not understand it".

Interestingly, of all the things that Thatcher ever said, the most memorable must be her strident declaration: "No! No! No!". In politics as elsewhere, it seems, all good things come in threes. If there is any justice, Johnson will forever be associated with another trio: "his deal … his mess … his failure". If it were left to me, I'd chisel it on his tombstone.

Also published on Turbulent Times.

Richard North 15/09/2020 link

Brexit: listing time

Monday 14 September 2020  

Responding to the claims of Johnson et al, Michel Barnier has responded on Twitter to say that the Protocol on Ireland/Northern Ireland "is not a threat to the integrity of the UK".

We agreed this delicate compromise with Boris Johnson and his government, he writes, "in order to protect peace & stability on island of Ireland. We could not have been clearer about the consequences of Brexit".

Responding to Johnson's specific charge that the EU "might actually stop the transport of food products from GB to NI", Barnier retorts that "sticking to facts is also essential". A case in point, he says, the EU is not refusing to list Great Britain as a third country for food imports (SPS). To be listed, we need to know in full what a country's rules are, including for imports, he says. The same objective process applies to all listed countries.

Nevertheless, it would appear that the EU has not yet listed Great Britain, which has David Frost answering in his capacity as the PM's negotiator in the current and last autumn's talks.

On the Protocol, he says, we indeed negotiated a careful balance in order to preserve peace and the Belfast (Good Friday) Agreement. It is precisely to ensure this balance can be preserved in all circumstances that the Govt needs powers in reserve to avoid it being disrupted.

As to third country listings, he goes on to say that the EU knows perfectly well all the details of our food standards rules because we are operating EU rules. The situation on 1 January 2021 is accordingly perfectly clear. We have discussed this frequently with the EU including last week.

Any changes in future, he says, would be notified to the WTO and EU in the usual way with plenty of lead time. The EU lists dozens of countries globally on precisely this basis, without any sort of commitment about the future.

Yet it has been made clear to us in the current talks, Frost then complains, that there is no guarantee of listing us. He adds: "I am afraid it has also been said to us explicitly in these talks that if we are not listed we will not be able to move food to Northern Ireland".

The EU's position, Frost asserts, is that listing is needed for Great Britain only, not Northern Ireland. So if GB were not listed, it would be automatically illegal for NI to import food products from GB.

Thus, he concludes, "I hope the EU will yet think better of this. It obviously makes it no easier to negotiate a good free trade agreement and the solid future relationship which we all want".

And yet, as I remarked on Saturday, we raised this listing problem four years ago and we should not now be in a position, with only months to go, where it is still unresolved.

Nevertheless, it does seem to me that Frost is being rather presumptuous in expecting third country listing merely on the basis of track record (i.e., that we currently meet the requirements).

The EU's listing process is by no means automatic. It is a lengthy technical and administrative process, the top tier of a three-tier system comprising: (1) listing; (2) approval of establishments; (3) process controls and inspection at points of origin and subsequent processing. It is through this system that the EU ensures that exporting countries meet the standards for foods of animal origin set out in EU law.

The listing itself is conditional, and the listing process is intended to ascertain whether the "competent authority" in the applicant country has the systems in place which will enable conformity with EU food law. Furthermore, it implies that the country will make its best endeavours to ensure that conformity with the conditions of listing will be maintained.

The point at issue is that (2) & (3) are carried out by the competent authority of the exporting state. In listing a state, therefore, the EU has to assure itself that the competent authority has the ability, the resources and the commitment to enforce EU standards. Even if the first two apply, if the state lacks the commitment, then the EU would not be happy with listing it.

In this context, though, it seems the specific reservation is with import controls and the standards applied to imported foodstuffs. Clearly, if imported goods do not meet EU standards (for instance in terms of permitted pesticides and maximum residue levels), and they are used as ingredients in UK processing – or even just repackaged and re-exported – then UK export standards might be compromised.

Nothing of this is academic. Obviously, food entering EU Member States from third countries is inspected in Border Control Points (BCPs), but any modern food control system does not rely simply on single point inspections. It requires what the EU terms a holistic "farm to fork" approach, with controls at every stage of the process.

And although the system does occasionally fail (as with the horsemeat scandal), we are not really in a position to complain. The original system was devised by the UK, primarily to regulate meat imports from countries such as Argentina, enhanced in the wake of the Aberdeen Typhoid Outbreak and copied by the EU.

Where UK politicians are glibly talking about "deregulation", about adopting their own standards, and about making trade deals with the likes of the US, which do not conform with EU standards, then we really cannot be surprised if the EU is cautious about listing the UK. It is perfectly in order for the EU to seek bankable assurances that standards will be met, which are often secured by way of Free Trade Agreements.

Barnier makes the point that, when it comes to listing, "the same objective process applies to all listed countries", and that must be the case. WTO rules will not allow otherwise. But this applies both ways. If the EU can't be more severe in assessing the UK than it is with other countries, it cannot be more relaxed either. Otherwise, those other countries will demand the same treatment.

But this now gets interesting with Northern Ireland. Frost confirms that the listing applies to Great Britain but not Northern Ireland. Under the Protocol, as we know, the Province remains in the Single Market, applying EU law. Thus, it can only import foods of animal origin from EU Member States and listed third countries.

It follows, therefore, that if Great Britain has not been listed by 1 January 2021, no foods of animal origin can be exported to Northern Ireland. On the other hand, Northern Ireland can still import from the Republic of Ireland, from any other EU Member State, and from any other listed third country (such as Canada).

In anticipation of such a possibility, there is a huge amount of outrage, with Ambrose Evans-Pritchard talking of the UK's need "to defend itself against predatory diplomacy".

But the outrage is vastly overcooked. Listing is a technical process and either the UK meets the requirements or it doesn't. This isn't even for Barnier to decide. It is decided by the EU's Health and Food Audits and Analysis Office, located in Grange, Ireland, and the decision to list is made by the Commission in accordance with the criteria set out in Regulation (EC) No 854/2004.

Specifically (with certain exceptions), third countries can appear on the lists only if their competent authorities "provide appropriate guarantees as regards compliance or equivalence with Community feed and food law and animal health rules". If the UK can't provide those guarantees, no amount of special pleading will get it listed.

Furthermore, this listing process has to be carried out irrespective of any free trade agreements. The process is entirely independent of such deals, and applies to all third countries.

One wonders, though, whether Barnier has picked up the implications of Clause 2 of the UK Internal Market Bill, on mutual recognition. This includes Northern Ireland (see Clause 53), which would seem to indicate that the listing requirements of EU law have been by-passed.

If this is the case, then the current argument is moot. The UK government will be ignoring EU law and allowing produce to move from Great Britain to Northern Ireland, irrespective of whether third country listing has been secured.

It will be interesting to see whether this is raised in the Commons debate today or whether, like so many things, it goes by default because MPs haven't the wit to do their jobs.

Also published on Turbulent Times.

Richard North 14/09/2020 link

Brexit: a cart and horse

Sunday 13 September 2020  

There is no question that the Protocol on Ireland and Northern Ireland is complicated – fiendishly so.

And I would wager a year's wages (if I was actually paid any) that Johnson didn't read it before he signed it, or since. He will be totally reliant on Janet & John summaries written by his officials and spads. That is the way he works and, only armed with profound ignorance could he be so confident in blazing his trail of misinformation.

However, the controversy that arose last November when the prime minister assured worried exporters they would not have to fill in customs declarations when they sent goods across the Irish Sea needs some clarification.

At the time, Johnson was questioned by an exporter about whether his business would have to complete extra forms, when he said: "You will absolutely not". But he went on to clarify this in terms of goods going to Northern Ireland and those coming from the province to Great Britain.

Johnson did, in the video clip published, make it clear that there would not be checks and tariffs on goods going from Northern Ireland to (as he says) the United Kingdom. We would have, he said, "unfettered access".

That was true and remains the case, although there is a third element. Johnson was less clear about paperwork, recommending that if any business was asked to fill in any paperwork, they should telephone the prime minister "and I will direct them to throw that form in the bin".

It was here that Johnson seems to have been wrong, in that under the EU customs code (elements of which will apply to Northern Ireland) traders will be required to make 'exit declarations' when goods leave the province, even when going to the rest of the UK.

There was, though, some dispute about whether the EU would grant a waiver as the provision, it was argued, was incompatible with the commitment to unfettered access.

From what I can ascertain, though – as of last July, the government had not secured a waiver, and businesses were in the dark about precisely what would be required of them. Johnson, at the very least, had jumped the gun.

As to goods moving from Great Britain to Northern Ireland, Johnson has never disputed that some checks will be required and tariffs will be levied where there is considered to be a risk of them subsequently being moved into the Union. Setting the criteria for applying tariffs is allocated to the Joint Committee.

Up to press, we have had no information on those criteria and now Johnson is asserting that the EU is about to impose those tariffs. But I can find no provision in the Protocol for that to happen. Setting the criteria seems to be a power reserved exclusively to the Joint Committee.

I do readily concede though that the Protocol in complicated, so it would be easy to miss what might be termed a fallback provision. But I can't see that awarding default powers to the EU would have been acceptable. The situation is covered by the dispute settlement procedure where, if the Joint Committee fails to deliver, either party can seek a ruling from an arbitration panel.

On the face of it, therefore, the prime minister is wrong in claiming that the EU is about to impose tariffs. But where this gets seriously bizarre is that he now seems to be asserting that "any such tariffs … would be completely contrary to the letter and the spirit of the Good Friday Agreement".

The situation is further confused by Hannan who is now claiming that the Withdrawal Agreement was passed on the basis that a trade deal would be not only agreed in 2020 but fully implemented.

Such a deal, he asserts, would ensure that Northern Ireland faced no tariffs, either vis-à-vis Great Britain or the Republic of Ireland, since there would be no tariffs between the UK and the EU.

And then notwithstanding the fiction that he then offers as to the progress of the talks, nowhere can he cite an actual provision in the Withdrawal Agreement that in any way makes its implementation (or not) conditional on securing a trade deal.

Hannan – as does Johnson – also seems to be under the misapprehension that the EU is set to impose checks on goods moving from Great Britain to Northern Ireland. But, as I explained yesterday, these checks are not imposed de novo. They automatically apply the moment the UK moves out of the Single Market.

What the Protocol does is move those checks (and the application of tariffs) from the border between the Republic of Ireland and Northern Ireland, to the entry points in Northern Ireland. With or without a trade deal, most of the checks would still apply.

But now we have Hannan claiming that the legislation placed before Parliament this week (the UK Internal Market Bill) "is, though you wouldn't guess it from the coverage, narrowly and specifically designed to prevent such barriers, which might be applied maliciously".

This, however, cannot be found in Clause 42 of the Bill, which gives the Secretary of State power to disapply or modify export declarations and other exit procedures" and then only "to goods, or a description of goods, when moving from Northern Ireland to Great Britain".

This is absolutely nothing to do with tariffs or checks and it does not impact on goods being shipped from Great Britain to Northern Ireland. What it seems to be about is removing any requirement for exit summary declarations in the event that the UK does not secure a waiver, thus allowing Johnson to honour his promise that NI traders sending goods to Great Britain will not have to complete any paperwork.

To that extent, any breach in international law is "very specific and limited" and, presumably, would only kick in if the EU did not allow a waiver. As to the state aid provisions, they are rather more serious, but that is also another story.

On the face of it, it is hard to see how such a minor provision could be considered to be "undermining the Union of our country", or in any way seriously endangering peace and stability in Northern Ireland.

The rhetoric, though, is remarkable. Says Johnson, "we cannot leave the theoretical power to carve up our country – to divide it – in the hands of an international organisation". Thus, he says, "We have to protect the UK from that disaster, and that is why we have devised a legal safety net – in the UK Internal Market Bill – to clarify the position and to sort out the inconsistencies".

At first sight, this appears nothing short of delusional, as if it is writing into the Bill powers which don't seem to be there there, to deal with things which were agreed and embedded into an international treaty and cannot be removed without a major beach of international law.

But when Johnson wants to prevent barriers to trade between the nations and regions, he actually means it. He wants anything approved for sale in Scotland or Wales to be good for sale in England or Northern Ireland, and vice-versa.

And its there that the focus has been too tight. So far, I've been looking at Clauses 42-43. But if we look at Clause 2, we see 'the mutual recognition principle for goods – a requirement that goods which have been produced in, or imported into, one part of the United Kingdom ("the originating part") … should be able to be sold in any other part of the United Kingdom, free from any relevant requirements that would otherwise apply to the sale.

But that's not what he signed up to. Under most circumstances, goods shipped to Northern Ireland from Great Britain must comply with EU standards. His Bill seeks to change that, and constitutes a major break of the Protocol. It drives a cart and horse through the agreement.

This is not at all "very specific and limited". If this Bill goes through, the Protocol is a dead letter. And the EU cannot let that pass by.

Also published on Turbulent Times.

Richard North 13/09/2020 link

Brexit: taking the threats off the table?

Saturday 12 September 2020  

I am sure there was a time when prime ministers made statements, we tended to believe what they said.

That went out of the window, big time, with Blair and one learnt also not to trust Cameron, although I think many of his infelicities were errors rather than lies – the man seems to be out of this depth on so many things, and especially anything to do with the EU.

Certainly, when it comes to Johnson, the balance is firmly against giving him the benefit of the doubt. With a sociopath who has made a career out of telling lies, the first response to anything of significance that he says (or writes) is to check it for truth and accuracy (they're not necessarily the same things). Pending that, the default value is to assume it's a lie.

Thus, when the man writes, at length, in the Telegraph to justify his UK Internal Market Bill, nothing of what he asserts can be taken at face value.

For instance, Johnson claims that, in the Withdrawal Agreement, "we agreed to do some light-touch checks on goods arriving in Northern Ireland, in case they should go on to Ireland, in order to avoid checks at the North-South border". It was also decided, he writes, to create a Joint Committee, "in which we would thrash out the details of these new arrangements".

And, "it is here", he asserts, "that things risk coming unstuck". We are now hearing, he says, "that, unless we agree to the EU's terms, the EU will use an extreme interpretation of the Northern Ireland protocol to impose a full-scale trade border down the Irish Sea".

We are also being told "that the EU will not only impose tariffs on goods moving from Great Britain to Northern Ireland, but that they might actually stop the transport of food products from GB to NI".

However, if we contrast this with what the Protocol actually says, we find that, in respect of goods moving to Northern Ireland from another part of the UK, Union customs duties are not paid unless the goods are "considered to be at risk of subsequently being moved into the Union".

Any duties collected are not remitted to the EU and there are provisions for refunding them to operations where the goods are kept within Northern Ireland.

As to whether goods shall be considered "at risk", the criteria are established, not by diktat, but by the Joint Committee. On this basis, there is no question of the EU imposing any tariffs on goods moving from Great Britain to Northern Ireland, as Johnson claims. Under the protocol, it has no power to do so. It is up to the Joint Committee.

Then, if the UK disputes any decision of the Committee, it can go to arbitration, under the terms I discussed in my post yesterday. And then as a longstop, Article 16 of the Protocol makes provision for safeguards.

These are similar to Article 112 in the EEA Agreement: "If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures".

There are the usual caveats, but basically the UK under the circumstances defined can take unilateral action to protect against any damaging application of the Protocol provisions.

As to stopping the transport of food products "from GB to NI", this is not going to be the case, as long as goods entering from Great Britain conform with the relevant EU law. This is more or less the same condition that will apply to goods exported directly from Great Britain to EU Member States.

Here, we might have a little difficulty. As I pointed out in my post in January 2017 - yes, nearly four years ago – the UK will have acquired third country status. Therefore, to trade in foods of animal origin, the UK must be on the list of approved third countries for each specific category of food for which trade is undertaken.

This, interestingly, is not an automatic process. Before a third country can be approved, an evaluation of the country and its competent authority has to be carried out by the Health and Food Audits and Analysis Office, located in Grange, Ireland (European Commission, Directorate General for Health and Food Safety). And only once approved are the "competent authorities" recognised.

The requirements for each category of food products are specified in Annex III to Regulation (EC) No 853/2004. These must be checked and guaranteed by the competent authorities of the Non-EU country before an establishment can be listed as an EU approved establishment. The competent authorities also must inform the Commission if an establishment is no longer fulfilling the above mentioned requirements.

The Non-EU country must have a residue monitoring plan (in accordance with Council Directive 96/23/EC) for the category of food of animal origin and must appear in the list of countries with an approved residue monitoring plan (Commission Decision 2011/163/EU as amended). Then, for food products concerned, the Non-EU country must have a salmonella control program in animal population in accordance with Regulation (EC) No 2160/2003.

According to the UK website, "The European Commission will vote on whether to list the UK as a 'third country' (non-EU-country)", which would suggest that it hasn't voted yet – which very much seems to be the case.

EU officials are stating that the UK has so far failed to provide the necessary information on its food standards regime for listing to be approved. Barnier says that, "More clarity is needed for the EU to do the assessment for the third-country listing of the UK".

As to Northern Ireland, the website says: "Until negotiations with the EU conclude, there will be some areas without complete certainty, but full guidance will be provided by the end of the transition period".

Up to press, I had assumed that the administrative details to secure third country listing would have been resolved fairly simply but, if the UK is contemplating a no-deal TransEnd then these details might not be settled in time. Thus, in theory, the UK would not be able to export foods of animal origin to EU Member States – or ship them over to Northern Ireland.

This, though, as I pointed out in February 2017, is not a question of the EU blocking British trade. We have moved outside the "walled city" and must conform with pre-exiting rules in order to send our products back in.

As it stands, we've had over four years to fix our third country listing, and if we haven't sorted it out by now, then there is something gravely amiss. But even then if there were serious problems, for Northern Ireland, there can be no doubt that we could invoke safeguard measures.

Now, here is the rub. Johnson is citing these difficulties (imagined and real) as justification for his Bill, telling us to "take the threats off the table".

But this Bill only deals with movement of goods from Northern Ireland to Great Britain. The problems, such as they are, to which he refers in his Telegraph article relate to movement from Great Britain to Northern Ireland – which is unaffected by the Bill. Nevertheless, Johnson goes on to assert that:
It is now also clear that we need this Bill to protect the free flow of goods and services between NI and the rest of the UK, and to make sense of that commitment in the EU withdrawal agreement – that NI is part of the UK customs territory. It is therefore crucial for peace, and for the Union itself. We must get this Bill through.
Yet, unless I have drastically misread the Bill (Clause 42 applies), it is a complete irrelevance to the flow from GB to NI and, for the flow in the opposite direction (to which the Bill does apply), "unfettered access" is already written into the Protocol.

Needless to say, Charles Moore seems to have supped at the Kool Aid, but for anyone who has actually read the relevant parts of the Bill and the Protocol, it seems we are being taken for a ride. The UK is about to embark on the process of breaching international law for no good reason.

Also published on Turbulent Times.

Richard North 12/09/2020 link

Brexit: reaping the whirlwind?

Friday 11 September 2020  

It is quite possible that Monday could be the crucial day. That is when the United Kingdom Internal Market Bill comes to the Commons for its second reading.

If Tory MPs supinely give way to Johnson and give the Bill a free passage, the EU will know that it has a fight on its hands, and that its ultimatum is being ignored. But it will still have two weeks to wait before having to take action, whatever that might be.

There are still those who think that this is just a last-minute attention-getter on the part of Johnson, although it's pretty extreme even for him, and I doubt whether MPs would really appreciate being used as walk-on extras in this latest psycho-drama.

When you think about it, that would be the most extreme gambit of them all – pushing a Bill though Parliament, then to pull it at the eleventh hour, all in exchange for some unknowable concessions from the EU. But, if the "negotiating ploy" theory is correct, that's what it amounts to.

My gut instinct, therefore is that this is for real, although precisely what Johnson aims to get from winding up the Euros isn't at all clear. David Cameron, in his memoirs, calls Johnson "inchoate" and it's quite possible that the man hasn't thought it through.

Real or not, Johnson has most definitely put us on the path to a very rapid no-deal. The transition period, after all, is a creation of the Withdrawal Agreement (Article 126) and if the Agreement is terminated abruptly, then the transition period goes with it.

However, in pursuing the dispute procedure written into the Withdrawal Agreement, the parties are obliged to avail themselves of an arbitration panel, and normally this doesn't convene until three months after written notice has been given to start a consultation period.

One might wonder, therefore, whether the timing of this Bill is accidental, or whether it has come before the Commons with no time for the EU to initiate the formal arbitration procedure before the transition period automatically comes to an end.

The point here is that, in the EU's "ultimatum" (link above) Vice-President Maroš Šefcovic reminded the UK government that the Withdrawal Agreement contained "a number of mechanisms and legal remedies to address violations of the legal obligations contained in the text" which, he warned "the European Union will not be shy in using".

With that in mind, the situation for the EU gets worse. Not only is there a three month delay before initiating the arbitration process, once a panel gets going, it is given up to 12 months from the date of its establishment to deliver a ruling. However, either party can ask for the case to be treated as "urgent", in which case the panel has to make "every effort" to deliver its ruling within six months.

It should be noted that Šefcovic is confining the EU to using the mechanisms within the Withdrawal Agreement, in which case it does not seem possible that any formal action could be concluded before the transition period is already over.

That actually makes the widely touted threat of "legal action" rather weak, leaving the possibility of abandoning the "future relationship" talks. That could, of course, be exactly what Johnson wants. In his playbook, that might allow him to claim that the EU walked out and is therefore to blame for the failure to reach a deal.

On the other side, Gove already seems to have ruled out any prospect of the government backing down and, under the present circumstances, it is difficult to see how it could do so.

Faced with such a stern ultimatum from the EU, a climb-down at this stage would immediately be added to the list of U-turns which the government has already made, representing nothing less than a humiliation for the prime minister. That is most certainly how the media would present it.

On the other hand, there is always the possibility that the Commons could rebel, and refuse to give the Bill its second reading. However, there is no indication yet that there are sufficient (or any) MPs who would be prepared to defy a three-line whip.

Any parliamentary rebellion, if it is to come, may happen in the Lords. In addition to Theresa May – still in the Commons – and John Major, former Tory leader Michael Howard is a seriously unhappy bunny. This is what he had to say in the Lords yesterday:
Does my noble and learned friend simply not understand the damage done to our reputation for probity and respect for the rule of law by those five words uttered by his ministerial colleague in another place on Tuesday – words I never thought I would hear uttered by a British minister, far less a Conservative minister? How can we reproach Russia or China or Iran when their conduct falls below internationally accepted standards, when we are showing such scant regard for our treaty obligations?
The Lords have the power to delay this Bill for a year which means, if they are so minded, they could stop Johnson's adventure in its tracks. And that too would inevitably be seen as a humiliation for the prime minister, demonstrating an inability to get his own legislation passed.

Around this, there is the issue of whether MPs are bound be international law, or whether they have the constitutional right to vote for laws which contradict treaties. But in many respects, this is a red herring. Treaties are made between states and it is states which bear the responsibility for seeing that they are upheld.

Even the "invertebrate" Suella Braverman, rather unconvincingly acting out the role of Attorney General, has to concede that, "It is an established principle of international law that a state is obliged to discharge its treaty obligations in good faith". She adds that "This is, and will remain, the key principle in informing the UK’s approach to international relations".

She then goes on to discuss the "fundamental principle of Parliamentary sovereignty", but she really should have stopped there. The duty of performance rests with the Government, not Parliament. The MPs can express all the "sovereignty" they like, within the bounds of the Westminster estate, but in upholding treaties already ratified by Parliament, the Government is supreme.

We have an interesting situation here that, should Parliament vote to disapply all or part of a treaty, this does not absolve the Government from maintaining its international obligations. Its duty would be to require Parliament to overturn its action.

Only if the Government is unable to impose its will on Parliament would it then be able to invoke Article 61 of the Vienna Convention of the Law of Treaties, terminating a treaty on the grounds of "impossibility of performance", where "the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty" – in this case the withdrawal of Parliamentary consent.

However, there is a delicious "Catch-22" in that "impossibility of performance" may not be invoked if the impossibility is the result of the Government breaching an obligation under the treaty – which is the case, by virtue of it having introduced the Bill in the first place.

By that measure, if the Government succeeds in getting Parliament to authorise it to break the terms of a treaty, the very fact that it has procured that authorisation precludes it from terminating the treaty.

Whether he knows it or not, Johnson has got himself in a mess – unless, of course, it is his intention to sabotage to the talks and walk away with a no-deal. But then, with an outcome so unpredictable, he is not in control. He may find that he has merely sown the wind – and will shortly reap the whirlwind.

Also published on Turbulent Times.

Richard North 11/09/2020 link

Brexit: deliberate sabotage?

Thursday 10 September 2020  

Well, now we've seen the United Kingdom Internal Market Bill, we have a better idea of what we're dealing with, although it is not as straightforward as some might think.

Since Brandon Lewis has already admitted that the Bill (when passed into law) will breach international law, in a "very specific and limited" way, there can be no dispute about the basics, and what we appear to be looking at are Clauses 42 and 43, which apply to Northern Ireland.

Clause 42 is intended to give the minister power to disapply or modify export declarations and other exit procedures in relation to goods when moving from Northern Ireland to Great Britain, including "any exit procedure that is applicable by virtue of the Northern Ireland Protocol or otherwise".

Here, having devoted more time to this than I would care, it would seem that the application here will indeed be very limited. As it stands, the Protocol acknowledges the importance of maintaining the integral place of Northern Ireland in the United Kingdom's internal market.

Also allowed for is "unfettered market access" for goods moving from Northern Ireland to other parts of the United Kingdom's internal market, and provisions of Union law made applicable by the Protocol which prohibit or restrict the exportation of goods "shall only be applied to trade between Northern Ireland and other parts of the United Kingdom to the extent strictly required by any international obligations of the Union".

It is that very last bit which would seem to be relevant although, given that "unfettered access" will apply, it is hard to see when, or under what circumstances and Union provisions will apply.

Clause 43 looks somewhat more serious. It refers to Article 10 of the Protocol, which deals with state aid and can be used to limit "measures supporting the production of and trade in agricultural products in Northern Ireland". And here the Clause allows the Secretary of States to make provision in domestic law for interpreting Article 10, or "disapplying, or modifying the effect of, Article 10".

On the face of it, this would appear to allow a British Minister to overturn a provision of the Protocol – which is an integral part of the Withdrawal Agreement – potentially putting the UK breach of international law.

There can be no doubt that this is the intended purpose of the law. Clause 45 unambiguously states that Sections 42 and 43 (i.e., when they become law) - and any regulations made thereunder – will have effect "notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent".

That, very clearly, puts the UK on the path to a breach of international law. In general terms, we're looking at the Vienna Convention on the Law of Treaties, to which the UK is a party.

Specifically, the UK would be in breach of Article 26, headed: "Pacta sunt Servanda", which states: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith". The UK would also fall foul of Article 27, which states that: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty".

Here, a more normal circumstance might be that, having agreed a treaty, a party might find a provision of domestic law contradicts it, in which case the treaty provision must take precedence.

I can't think, though, that the UK has ever gone out of its way deliberately to promulgate a law with the specific intention of contradicting a treaty provision. One should never say never, but I can't think of any example where this has been done. The more normal course of action would simply be to abrogate the treaty.

This does put the EU in a rather awkward position – which Pete has explored. The action is extremely provocative but, if the Commission responds sharply, it could find itself being blamed for any adverse outcome.

Some, therefore, see this as part of the end-game posturing – even arguing that it actually brings us closer to a deal. Personally, I don't see it that way. The British government could have made the same point, by way of a formal proposal in the current round of talks, without putting itself potentially in breach of international law.

If the Bill is a tactical ploy, for instance – and it goes through the procedures and becomes law, would the government then repeal it, if it got what it was looking for? And could the ploy even succeed, given that the Withdrawal Agreement is not on the table and Barnier has no mandate to negotiate amendments?

Unsurprisingly, therefore, we are seeing reports that the Commission is considering "legal action", although there can't actually be a breach of international law until the Bill receives Royal Assent and is implemented.

However, there is no doubt that the Commission is perturbed by this action, and a draft working paper is circulating to Member States, expressing the view that the UK Internal Market Bill represents a "clear breach" of the Withdrawal Agreement, which would "open the way to legal remedies".

There is something of a problem here for the Commission as the Agreement has an "exclusivity" provision (Article 168), which states that, in the event of a dispute, the parties "shall only have recourse to the procedures provided for" in the Agreement.

The end point of the procedure is arbitration, with the provision for a lump sum or penalty payment in the event of non-compliance and, in the event that that is not paid, the Commission would be entitled to suspend application of parts of the Agreement (with the exception of citizens' rights).

If it is the intention of the UK to dump the Withdrawal Agreement, however, then manoeuvring the Commission into suspending it hardly seems an appropriate move, and it puts the EU on the back foot as the initiator of the process, after going through the full dispute procedure. Clearly, it was not designed to deal with such an egregious example of bad faith.

The more immediate response might be for the EU to suspend the Future Relationship talks. There are, in fact, emergency talks today, aimed at salvaging some form of agreement, with little expectation of success.

It must be very difficult though for the Commission to deal with No.10 which is currently churning out contemptible gibberish. It talks, for instance, of the Withdrawal Agreement having been signed "at pace", asserting that it had always been intended that "grey areas" in the treaty could be clarified later on.

But these are not grey areas and, as von der Leyen says, the legal principle of pacta sunt servanda is the "foundation of prosperous future relations". She is supported by European Council President, Charles Michel, who adds that the "breaking international law will not create the confidence we need to build our future relationship".

Basically, if the UK government was deliberately setting out to sabotage the talks, it is going the right way about it, forcing the Commission to walk while they maintain a studied air of injured innocence.

With the media focused on Covid-19, Johnson could get away with it in the short-term, if Parliament allows it. But we have probably never been closer to a no-deal, and when the blame game comes round, we all know where to look.

Also published on Turbulent Times.

Richard North 10/09/2020 link

Brexit: very specific and limited

Wednesday 9 September 2020  

Brandon Lewis's admission that the Johnson administration is about to break international law but, only in a "very specific and limited way", is almost beyond satire. But, in other ways, it's pure Dominic "I'm only doing an eye test, Guv" Cummings.

Who other could come up with such a totally lame excuse, the sort of thing you would tell the speed cops only if you'd abandoned hope of getting off with a warning. "Yes Constable, I broke the speed limit, but only in a very specific and limited way". You can see this now being trotted out, as a laconic comment, in the same way that eye tests have acquired new meanings.

With that, it's almost got to the point where the details don't matter. Not one in ten thousand (being generous) might have the first idea of what "specific and limited" points in the Withdrawal Agreement have been breached. Most people have taken the Johnson option and not even read it.

But now, locked into the public psyche is the image of Johnson and his merry sycophants clocking up another egregious blunder by excusing themselves from liability just because their lawbreaking is "very specific and limited". And a lot of people will be saying quietly to themselves, "what's good for the goose is good for the gander".

What then gives the whole thing even more legs is the resignation of Sir Jonathan Jones, the Treasury solicitor and permanent secretary of the government legal department. Apparently, he told colleagues that he was resigning, without giving his reasons, but it has automatically been assumed that he has walked in protest at the government's law-breaking.

It is understood, says The Times - which means they haven't got a source strong enough to stand it up – that this senior official has been in dispute with Downing Street for some time "over what critics say is an attempt to override the withdrawal agreement with the EU".

For its comfort quote, the paper has had to rely on Lord Pannick, the lawyer who led two successful legal challenges to the government in the Supreme Court. He says it appeared that Jones quit after ministers ignored his warnings.

"There is a long and healthy tradition of senior government lawyers telling ministers in clear terms when they propose actions which will be unlawful", Pannick says. "It sounds as if Sir Jonathan has decided that a hard legal border is about to be crossed and he wants no part of it".

I rather hope this is true. It would be nice to think that there are still people in the civil service (until very recently) who actually had principles and were prepared to resign when lines were crossed. We've grown used to Ministers ignoring such quaint, old-fashioned ideas, so the hired help has to take up the slack.

Certainly, we're not going to get anywhere with the minister responsible for keeping the government on the straight and narrow. That would be the attorney general or, as Marina Hyde calls her, "leading invertebrate" Suella Braverman. Actually, when it comes to insults, Hyde is a class act. Mine tend to be a bit pedestrian by contrast.

On this issue, though, John Crace is also having a go, but it's difficult to do satire when the government is making it so easy that it's almost redundant.

His "pen-picture" of the truth-giver Brandon Lewis, though, is quite delicious: "not even his most generous friends" would describe him as particularly bright. "He is one of parliament’s natural plodders. A born follower. A man who has unexpectedly found himself in the cabinet both by virtue of his more talented colleagues having disqualified themselves for being awkward and having no principles of his own he could possibly compromise".

By way of a change, the paper also does "pompous", although I don't think this quite catches the mood, as it intones of Johnson: "my word is not my bond".

Referring to a man who is a pathological liar and who has turned political lying into an art form, this surely has to be the statement of the bleedin' obvious to end all such statements.

Nonetheless, the paper does rehearse the details. Johnson won the last election, it says, in part because he could say on what terms he would leave the European Union and his opponents could not.

He had that infamous "oven-ready" deal, except that this was an MRE (Meals Rejected by Ethiopians) deal, one so dire that even Theresa May wisely rejected it, saying that "no UK prime minister could ever agree to it".

On the basis that there's one born every minute, the EU found in Johnson exactly the prime minister stupid enough to buy into the original version, handing him the draft of what he was to call a "fantastic" deal – the very same one that he now wants to kick into touch.

Mrs May at least had the sense to go for a better deal and then broker the Strasbourg Instrument which emphasised that the parties did not wish the backstop solution in the Protocol on Ireland/Northern Ireland to become applicable.

Should it do so, they agreed, it would represent a sub-optimal trading arrangement for both sides, and both parties, therefore, were determined to replace the backstop solution for Northern Ireland by a subsequent agreement.

No one then knew what that agreement would entail but on one thing everyone was agreed, that it would ensure, on a permanent footing, the absence of a hard border on the island of Ireland, in full respect of the integrity of the Union's internal market and of the territorial integrity of the United Kingdom.

The Instrument, therefore, locked into the agreement that negotiations would start, as a matter of priority, on a "subsequent agreement" as soon as possible after the United Kingdom's withdrawal from the Union, the parties using "their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part".

Then along came the buffoon Johnson who turned the backstop into a frontstop and signed up to make it mandatory, without any prospect of relief. The Strasbourg Instrument fell by the wayside and the very thing Johnson thought he had got, he had given away.

With the passage of time, the prime minister, says the Guardian is being forced to reveal what he stands for. "And the sight of incompetent and dysfunctional government has not been an appealing one", it concludes.

The degree to which Johnson has messed this up almost beggars belief and now that his "fantastic deal" is unravelling – as it always would – he is thrashing around trying to extricate himself from a mess of his own making.

Yet this is the man who, today, will lay down the law on Covid-19, expecting us dutifully to obey his instructions, while – no doubt – he goes in search of another dressing-up opportunity, in order to get his picture in the papers again – while he trashes the UK's international reputation.

But there must eventually be a limit to the number of times and ways that this man can stretch the tolerance of a nation that needs and deserves grown-up government. When it comes, one just hopes that the necessary outcome will be swift.

Also published on Turbulent Times.

Richard North 09/09/2020 link

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