Brexit: closing in

Thursday 19 July 2018  



If something particularly unmentionable had legs and could speak in the House of Commons, it would possibly look rather like the erstwhile foreign secretary. And, in delivering his wormtongue personal statement in the House yesterday, Johnson illustrated the great divide between himself and the prime minister.

While he harped on about the Lancaster House speech, which marked the collapse of any sentient Brexit policy, Mrs May has been progressively forced to inch closer to reality, ending up with the White Paper. But getting closer to what is needed – but by no means close enough – this has the oaf Johnson throwing his toys out of the pram, unable to cope with a world of which he has never really been a part.

One way of describing Mrs May's current approach is to picture a wide estuary up which a ship must be piloted. The prime minister imagines that the navigable channel runs up the median line – a course she has charted with the White Paper. But, in fact, the deep water skirts one bank. Anything wide of that risks running aground.

If one takes one bank to be her Lancaster House "vision", the other is Efta/EEA. Johnson would have us running aground well before the ship reached its destination. The trouble is that Mrs May isn't going to get much further.

That much is evident from a report in the Guardian which seems to have taken time out to do some real journalism.

It is telling us that the EU's team of officials, led by Michel Barnier's deputy, Sabine Weyand, has picked apart the most contentious parts of the White Paper when it was presented to them by Olly Robbins this week. Discussions, apparently, were "difficult", with the Brussels team voicing the oft-deployed accusation of "cherry picking".

An EU diplomat representing a Member State says: "What the UK has proposed is unacceptable. We have had no progress on the issue". He adds: "it is good that the UK has tabled the White Paper but that is not what we are talking about at the moment. The withdrawal agreement and Irish protocol in it comes first".

The outcome, according to another of those omnipresent but anonymous senior EU diplomats, is that: "the White Paper is not going to form the basis of the negotiations". Nevertheless, there is still a reluctance in Brussels to speak out in open criticism of the White Paper. The feeling is that a full-blooded rejection would prove an existential threat to Theresa May's premiership, and hasten the collapse of the talks.

With this in mind, Barnier is expected to pull his punches on Friday when he addresses reporters at the end of a meeting of ministers from the 27 member states, where they are expected to be presented with a dossier drawn up by the European Commission laying out how to plan for a "no deal" Brexit. Instead of anything specific, Barnier is expected offer anodyne comments about the need to make progress on the Irish "backstop".

But, with concerns being expressed at the chaotic events unfolding in Westminster, British government sources are admitting to "growing despair" over what they regard as the "intransigence" of their EU counterparts. The new Brexit secretary, Dominic Raab, is preparing to make public detailed plans on how the UK would deal with a lack of agreement by 29 March and a cliff-edge Brexit.

This means both sides are making preparations for a "no deal", although there are no indications that British officials understand the gravity of the situation. A UK source told the Guardian: "Of course both sides have to be ready for no deal and we have made extensive plans. The difference is that our plans include sensible mitigations to alleviate some of the worst imaginings that some people have".

Despite this, it seems the UK pharmaceutical industry is preparing to stockpile medicines and medical supplies against the possibility of the UK crashing out of the EU. This is one of many signs of a growing sense of urgency, which even seems to be pervading the Brexit negotiations, with the Commission about to propose that the talks continue through the usual holiday month of August.

Furthermore, both UK and Brussels sources are suggested that an informal European Council in Salzburg in September could become a "crunch moment" when EU leaders will have a chance to revise the negotiating guidelines and instruct Barnier to take a more flexible approach. Alternatively, they could send the UK back to the drawing board.

Either way, it is thought, agreement in October on the withdrawal deal and the political declaration on the future relationship is highly unlikely. An emergency Council meeting is being pencilled in for early November.

In anticipation of failure, real world measures are being taken, with the Dutch government hiring nearly 1,000 customs officials to deal with Brexit. Pieter Omtzigt, the rapporteur on Brexit for the Dutch parliament, confirmed the recruitment had taken place. 

On the basis that the Netherlands are, after Germany, the second trading partner with the UK within the EU, he declared: "That means that because of the political uncertainty within the UK, I asked my government a year ago to start hiring new customs officials. They've hired almost a thousand customs officials just in case Britain crashes out".

Warming to his theme, he said: "We're a trading nation; we cannot afford our customs system to completely get stuck because from one day to the next we also have to check all the British exports of goods and services. We also hired veterinary officials because if you crash out, you also have that problem".

Not to be left out, the Irish government is also in the thick of it, apparently gearing up for a major confrontation with the WTO over the commitment to retain a soft Border in Ireland in the event of a "no-deal" Brexit.

It is understood that among the contingency plans being considered is a resourcing of the Revenue (Customs) to deal with the increase in customs-checked transactions that will take place after Brexit. It is investing in new data storage systems, security and staff to facilitate the increase.

Now government sources are saying they are prepared for major confrontation with WTO officials, who will insist on a border with the North as part of strict trade laws. "That's just not politically deliverable; we won't be doing it," a source said. "Brussels knows we can't go back to the borders of the past; it'll be a very difficult and different conversation".

This seems a confused situation as I would not expect WTO officials to be directly involved here. This is more a matter for the Commission and the WCO, which hosts the many customs conventions. However, the very fact this this issue is being raised is a sign of the increasing tensions over Brexit plans.

Even then, this is just part of the bigger picture where Ireland is quite deliberately stepping up contingency plans for a no-deal. Heavily influenced by the instability in Westminster, Leo Varadkar, believes that even if the withdrawal agreement was agreed in Brussels, there is no guarantee that it would get passed in London.

Varadkar also warns that the UK will be restricted in flying aircraft in European airspace in the event of a no deal Brexit. "The situation at the moment", he says, "is that the United Kingdom is part of the single European sky, and if they leave the EU they are not and that does mean that if there was a no deal hard Brexit next March the planes would not fly and Britain would be an island in many ways and that is something that they need to think about".

In a rather tart comment, he observes: "You cannot have your cake and eat it. You can't take back your waters and then expect to use other people's sky", adding, "In the unlikely event that we have a hard Brexit next March, with no deal, I think every country will struggle to put in place the necessary infrastructure and customs and veterinary officials in their ports and airports. It won't be just us".

With this dawning realisation of impending chaos, we now see even in the strangest of places, signs that the rats are seeking ways of abandoning the Mrs May's stranded ship. Thus we have Paul Goodman of Conservative Home sniffing round the edges of the Efta/EEA option. But, in common with a number of latter-day quasi-coverts, he sees the EEA as a temporary safe harbour, while the UK gets its act together and looks for something better.

Notwithstanding that the complexities of adapting the EEA Agreement to the needs of the UK would probably take a couple of years to negotiate, I can think of no better way of being rejected by Efta States than for the UK to expect them to roll over and accept the disruption of its presence, just so that we can sort out our own self-inflicted problems.

This points to an almost complete lack of any appreciation of what the Efta/EEA option actually entails, typifying the general approach of so many pundits to Brexit, where knowledge of the issues is treated as a handicap.

Not even their profound ignorance, though, can subdue the impression that the walls are closing in. Any confidence in the ability of the May administration to resolve Brexit has drained away, like that ebbing tide which will most certainly ground her metaphorical ship.



Richard North 19/07/2018 link

Brexit: the House of Stupid

Wednesday 18 July 2018  



OK, so Vote Leave and the ghastly Darren Grimes have been fined by the Electoral Commission for exceeding spending limits. I'm not sorry – they deserved what was coming to them and I hope they don't escape on a technicality and the fines stick.

I am not going to accept, however, that this in any way affects the legitimacy of the referendum result. Those that complain about a weakening of democracy need to remember that we joined the EEC in 1972 without a democratic mandate.

Joining was not in the Conservative manifesto, the vote in the Commons was rigged and, in the 1975 referendum, where the effect was reversed, there were no spending controls. The pro-EEC groups, got through £1,481,583 (roughly £11.2 million in today's money), vastly outgunning the "no" side, which spent a mere £133,630 (just over £1 million today).

Those born-again democrats who argue that the extra spending by Vote Leave would necessarily have garnered extra votes (as if politics was that simple) must, if they apply that measure to the 2016 referendum, concede that the 1975 vote was invalid.

That notwithstanding, the chances of a re-run are vanishingly small and it is about time frustrated remainers stopped trying to re-run the referendum and concentrated on the issues to hand – not least the almost complete collapse of our parliamentary system.

For my part, I can't remember exactly when it was that I decided that the House of Commons had lost it over Brexit. But if we needed any reminders of how far the MP collective has departed from reality, yesterday's proceedings in the House serve more than adequately.

There are various reports on which we can rely, but they all say roughly the same thing. The PM "squeaked home" on a vote on a customs union, only to lose by 305 to 301 a vote on an amendment calling for the UK to stay in the European medicines regulatory network.

The amendment was tabled by former minister Phillip Lee, who quit over Brexit last month. In his view, continued participation "makes the process of accessing life-saving new medicines and moving medicines quick and easy". It was vital, he said, to ensure that British citizens continued to get the treatment they needed after leaving the EU.

Specifically, the amendment required the government to make it a "a negotiating objective" to secure an agreement that would allow the United Kingdom to continue to participate fully in the partnership.

The point about this fatuous Clause 17 amendment is that membership of the European medicines regulatory network is open only to the national competent authorities in the Member States of the European Economic Area (EEA).

This is a man, a self-declared remainer, who resigned from his post as Justice Minister in order to campaign for a "proper meaningful vote" on Brexit. Yet, unless he was conspiring to invent a back door into the EEA (which seems unlikely), his fog of ignorance absolutely typifies MPs' approach to Brexit – much noise and very little knowledge.

And just in case there is any idea that this ignorance is confined to the Tory ranks, we can see Jonathan Ashworth, Labour MP for Leicester South, declare on Twitter: "Can't understand why Tory govt opposed amendment to keep Britain in the European Medicines Agency – its (sic) vital for patients and NHS - fortunately govt lost the vote just now".

If parliament was ever in need of a new motto, at least Mr Ashworth has found it for his fellow MPs, in the first two words of his tweet: "can't understand". For some, though, "won't" might be more appropriate, even if the effect is the same.

Not one of the 305 MPs who voted for the measure appear to have understood that the object of the amendment was unattainable. For instance, Kenneth Clarke could "not understand, given that the White Paper also supports keeping our present arrangements, if we can, by remaining within the European Medicines Agency, is why on earth these proposals are being resisted".

This is the Mr Clarke who famously didn't read the Maastricht Treaty, so he was not going to read the negotiating guidelines which states that, "the Union will preserve its autonomy as regards its decision-making, which excludes participation of the United Kingdom as a third-country … in the decision-making of the Union bodies, offices and agencies".

Chris Leslie, Labour MP for Nottingham East thought the new clause was "a no-brainer". Said "no brain" Leslie, "If we are going to preserve anything, we must surely keep the frictionless flow of medicines and treatments for our national health service going".

Dr Paul Williams, Labour, Stockton South, similarly exposed his ignorance when he declared that "we still have the chance to be part of the European medicines regulatory network partnership, and continue to benefit from the work of the EMA (European Medicines Agency)", adding to this by stating that "we could do that by remaining a member of the EU, by becoming a member of the European Free Trade Association, or by negotiating an associate membership of the EMA".

While the first of his three options is correct, Efta, per sec does not give access to the network, and while there are international agreements with EMA, there is no provision for associate membership.

For all that, the actual debate on the motion was remarkably brief, yet not one MP opposing the motion – nor even a government minister – intervened to say that current government policy of remaining outside the Single Market made the amendment impossible for the government to pursue it.

What gives this wider relevance is that it illustrates how the House has lost touch with reality, arguing over the details with not the slightest appreciation of how Brussels will respond to their votes. So self-obsessed and inwards looking have MPs become that they seem to have lost any awareness that the European Union is a party to Brexit. They behave as if Brussels has ceased to exist.

Despite that, the political instability in London and turmoil in Westminster has not gone unnoticed. The Irish government is to step up its preparations for a hard Brexit and there is a report that the EU is preparing the release of "strongly-worded" emergency guidelines on preparations for a no deal Brexit, with an announcement planned from Barnier on Friday.

Meanwhile, in Calais, former French minister and president of Hauts-de-France, Xavier Bertrand has said that his port and his counterpart in Dover are facing "economic catastrophe" because of Brexit.

He complains that both the UK and the EU are allowing the two ports to drift towards disaster and has called on Emmanuel Macron to break the EU ban on bilateral talks to salvage the situation and have direct negotiations with Theresa May. "The way things are going", he says, "we are going to be left standing staring at each other like strangers. It's madness, pure utter madness".

Bertrand has made five trips to Britain to try to impress upon politicians and officials the need to swing contingency plans into action. He said his talks had been frank, but Dover-Calais was not "first in line in negotiations" meaning nothing was happening. "I am going to one more time try to increase the pressure and warn people about the dangers: what about the catastrophe?" he says, but time is running out.

"For a long time I was very optimistic", Bertrand adds. "I was afraid, but I believed the common sense and pragmatism would prevail. Now I am losing my sense of optimism but I want to find a way to avoid that catastrophe if things are not going to get better".

Rather than appreciating the urgency and potential consequences of this inactivity, the House of Commons is indulging in the equivalent of fiddling while Rome burns, perhaps better put as "blathering while Brussels fumes". It must surely realise that in a world of television and the internet, what it does and says can be seen round the world. No longer does one have to wait for the following day to see a print copy of Hansard.

Basically, if the House of Commons can't do better than it has been doing, and start realistically to address the problems of Brexit, it doesn't deserve to exist. Largely, it is devoting time to party political games and internecine squabbles, making it a complete waste of time and space. From the House of Commons, it has become the House of Stupid.



Richard North 18/07/2018 link

Brexit: snake oil strikes again

Tuesday 17 July 2018  



While our MPs were playing their games in Westminster, lifting Brexit to new heights of what a Guardian columnist termed "peak confusion", dark forces were nibbling around the edges in an attempt further to undermine Mrs May's White Paper.

At first sight the response to the Mrs May's White Paper, amounting to 154 pages, is pretty impressive. That's the length of the new IEA report which claims that, by 2034, its alternative could mean a GDP of up to 7.25 percent higher than it would otherwise have been.

But, when one finds that the authors are Shanker "Snake Oil" Singham, Radomir Tylecote and Victoria Hewson, it doesn't take long to realise that this is reheated Legatum Institute trash, despite being dressed up in the new title: "Freedom to Flourish".

The declared theme of this paper is "UK regulatory autonomy, recognition, and a productive economy", arguing that "withdrawal from the EU must mean regulatory autonomy for the United Kingdom – sovereignty over its regulations".

This is the means by which the authors argue that their 7.25 percent GDP hike will be delivered, spelt out in detail as requiring the UK to gain autonomy to make its own regulation, standards and system of conformity assessment.

Rejecting the imposition of EU law, it must also ensure that any recognition of EU regulations, standards and conformity assessment system is unilateral, and, finally, when it comes to the UK counterparts, we should seek EU recognition, thus completing the loop on mutual recognition.

Even before exploring the fatuity of this strategy, however, we need to look for the evidence to support the GDP claim, when we find one meagre paragraph which blandly informs us that "estimating the impacts of regulatory reform is challenging".

To overcome this "challenge", Team Singham relies on methodology used in a previous paper, written largely by himself. This supposedly provides the basis for a calculation which involves costing the effects of improved productivity and reduced anti-competitive barriers.

But the core of the calculation (apparently – the working out isn't shown) relies on matching "reforms" from Trans-Pacific Partnership countries and the United States which reduce domestic distortions by 30 percent over a 15-year period (starting from 2019 when the UK withdraws from the EU).

These miraculous events, which the UK must get under way in less than 20 months, are supposed to deliver an annual two percent reduction in distortions, each year estimated to improve GDP by 0.4 percent.

In the absence of any distortions reductions, GDP would grow by around 1.9 percent per year. But with a two percentage point annual distortions reduction, the annual GDP growth rate could increase to 2.4 per cent (for the UK, US and the TPP 11).

Tenuous, I would venture, doesn't even begin to describe this, but it is enough in the minds of Team Singham to justify dumping Mrs May's White Paper and substituting their own.

Autonomy, they say, must be the starting point: it is not simply one of the benefits of withdrawal, but a central requirement of the process that will allow the others to take place. Autonomy is therefore the vital competitive opportunity for an independent UK economy.

Given the importance of this "central requirement", one might have thought that we would be offered comprehensive lists of regulation with details of their costs and estimates of savings once they are removed or replaced with something less inhibitory to competition.

For all the hype, though, when we get down to the detail, we find Team Singham relying on regulatory costs produced by Open Europe in 2016, all based on government impact analyses of some antiquity and dubious accuracy. But how we are then supposed to grow our economy faster by dealing with these regulations simply isn't shown.

By any reasonable expectation, I think can be said with confidence that the papers comes nowhere near justifying its GDP growth figure – this point alone invalidating the thesis. For the sake of an entirely unsupported figure, we are supposed to ditch any idea of regulatory alignment with the EU, and then push for mutual recognition.

At the end of this path, of course, lies "no deal". On multiple occasions, the EU has made it very clear that it will not agree to mutual recognition of standards outside the framework of the Single Market. Therefore, if the UK insists on such mutual recognition, there is not even a resolution of the Irish border to be had.

Putting that element into the mix, the scheme on offer from Team Singham involves pitching for a 0.4 percent annual enhancement in GDP, potentially arising from better trading conditions with the US and TPP countries but, in so doing, putting at risk the £270 billion annual trade with the EU, currently worth ten percent of GDP.

This, though, seems to be the relationship which Davis and Baker are seeking, yet it is one that lacks any coherence whatsoever. At the heart of this flawed strategy is the dogma that we must "take back control", which translates into the UK making its own laws – "sovereignty over its regulations". This is the starting point of Singham et al, which is then (falsely) argued to be economically advantageous.

But even if we take away the EU dimension, we still have the "double coffin-lid" effect, where the UK is still bound by laws made at a regional or global level. Regulatory autonomy does not come with Brexit, under any conditions. To attain that state, we would have to walk away from dozens of international standard-setting bodies.

At this level, even if we could achieve regulatory autonomy, why would we want to? What would be the point of having our own separate standards for aerodrome safety when, to fall below the ICAO Annex 14 standard would be to have our airports made off limits to international traffic.

We might recall that ICAO also sets the technical standards for passports, something about which I was reminded when I sought recently to renew my passport on-line.

The system requires submission of a digital photograph, which is not easy to get right. Mine failed the automated checks, then eliciting a message from the Passport Office, declaring: "The photo you submitted with your passport application can't be used. It doesn't meet the photo standards set by the International Civil Aviation Organisation".

If Brexit demands that the UK has sovereignty over its regulations, then we could end up with our own photo standard, whence our marvellously blue passports would not be acceptable anywhere in the world, other than in British sovereign territories.

One could go on, and it would be useful some time to expose the tricks Singham et al use to give their work spurious credibility. But it is so plainly obvious that this "plan" is a non-starter that we need not waste any more time on it.

But, as we move from one incoherent plan to another, we get closer to a "no deal" Brexit, from which Pete warns the Brexiters have most to fear.

Even the Guardian is cottoning on. After last night's shenanigans, it observes that fears are growing at Westminster that there is now no Brexit deal – not the Chequers plan, nor David Davis's Canada-style trade deal, nor a no-deal scenario – that could command the backing of a majority of MPs.

That leaves the one plan standing – the Efta/EEA option. Systematically trashed by both official campaigns during the referendum campaign, it has nevertheless stood the time as the only thing that could work. And, if it comes down to that or no deal, under normal circumstances, it would be a no-brainer.

Unfortunately, as we move from a no-brainer to a parliament with no brains, a "no deal" has never seemed more likely.



Richard North 17/07/2018 link

Brexit: down to the stump

Monday 16 July 2018  



In dealing with something like Brexit, when the noise level gets too high, one tends either to shut down, or apply a filter. In the latter event, the filter is usually selective, so one is bound to lose some intelligence and an amount of objectivity. And by this mechanism, one finds that once we reach saturation point, situational awareness – as they term it in the military – actually decreases.

You can get really into this, with a discussion of the OODA loop but, without taking it too deep, it is relatively uncontentious to assert that, when it comes to information, more isn't necessarily better. When there is too much, not even a filter is of any value. One resorts to that higher defence level and simply shuts down.

Most people, I suspect, reached this point a while ago. And this weekend, I've probably got as close to it as makes no difference. Fortunately – from the perspective of my sanity – we had the tree surgeons in last week to remove a spruce which had grown over-large and was too close to the house. It had to go.

That, of course, leaves us with a stump which, because of its particular location, needs to be removed. One can spend many happy hours on You-Tube learning how to do this. The most entertaining way was to shackle a Russian tank transporter to a stump and apply maximum horsepower – only to watch the chains break.

My technique, learned from past experience, it to treat the area like an archaeology site, using no more than a trowel painstakingly to expose the major roots, whence one can sever them with a saw or an axe and liberate the stump. If you have patience, and do it little and often, the job is soon done.

It comes to something, though, when this is more fulfilling than charting the serpentine progress of Brexit, more so when one has to deal with what Pete might describe as the "bellend" David Davis. Wasting time and space in The Sunday Times following his resignation, he claims that Mrs May has "left our fingers in the EU mangle", but then asserts, "there is a way to get free".

Instead of [partially] adopting the "common rule book", Mr Davis would have us operate within a "mutual recognition of standards and inspection" regime to minimise the burden of bureaucracy. The Commission, he says, "does not like this much, but it has negotiated mutual recognition regimes with other countries in the past. And on the basis of my experience, most European countries are comfortable with this".

Thus does this man demonstrate that, in his period in office – to say nothing of his entire career – he has learned precious little of the ways of the EU. To my knowledge, no country in the world has successfully negotiated a "mutual recognition of standards" regime. This applies only to Single Market participants, and then only in the absence of a harmonised standard.

An earlier edition of the Telegraph looked at the distinction in conspiratorial terms, calling in aid the odious Steve Baker to tell us that an "establishment elite" had secretly been pursuing a plan for a much softer Brexit than the one on which he and Mr Davis had been working.

That Mrs May has rejected the flawed idea of relying on "mutual recognition of standards" is perhaps the one saving grace of the White Paper. But when one recalls that this is the brainchild of Shanker "Snake Oil" Singham, and comes straight out of the Legatum (now IEA) play book, this also represents a turning point in Singham's influence.

Whatever the eventual outcome of Brexit, with the departure of Singham's sponsors, we may have seen the weakening of the grip of this Rasputin-like figure over the Department for Exiting the European Union.

Had either Davis or Baker the brains they were born with, though, they could have read Barnier's speech from last Tuesday in New York. There, he specifically mentioned the UK wanting the EU to accept a system of mutual recognition of standards, a proposition which he rejected.

Once again, we had a reference to the common "ecosystem" of regulation, supervision and enforcement, with Barnier then declaring that, "the UK needs to understand that the EU cannot accept such mutual market access without all the safeguards that underpin it".

Barnier could not be more direct, or blunt, but still it doesn't percolate into the brains of the "Ultras", and their ministerial representatives. They should not even need telling but, since it has been spelt out to them, the very least they could do is take "no" for an answer.

This is something Andrew Marr could have picked up when he interviewed Mrs May on his show yesterday but, as we've found to our cost, the BBC doesn't do detail.

One could see Marr itching to explore the tensions between the prime minister and her Brexit secretary, turning the issue into a biff-bam personality contest. One was allowed to know that, in seeking a "common rule book", Mrs May had come up with a different approach, but Marr did not trouble his interviewee to explain the differences in approaches. All he wanted to know was when Davis had learned about the intention to pursue the different approach.

Nor indeed did Marr question whether Brussels might accept the White Paper and he even allowed Mrs May to get way, unchallenged, with asserting that adopting the "EEA-plus" option "would have meant accepting free movement and accepting being in the customs union".

To that precise point, Marr responded by saying that, "in doing all of this you cut out the man you put in charge of the Brexit negotiations and his department". They were working on a different plan, said Marr, "they had no idea about this common rule book, and you cut them out and therefore he had no option but to resign, and he's clearly very angry about it".

From this, you can see why digging up tree stumps with a trowel becomes more interesting than Brexit. Marr and his BBC colleagues are fundamentally incapable of stepping outside their own self-imposed limitations, and constantly regurgitate the same personality politics paradigm. It's as if it was written into their DNA.

But even when you look wider, it gets worse. The legacy media are currently trumpeting headlines about a speech Mrs May is to give today at the Farnborough airshow, the BBC version stating that her "Brexit plan will protect UK aerospace", with the prime minister ready to declare that the "common rule book" will ensure "frictionless" exchange.

It won't, of course. Nothing short of full participation in the EEA will give the UK the status it needs for a trouble-free Brexit, but there is not a single media organ capable or willing to tell us why the May plan won't work. And by their default does ignorance grip the land.

At least the Observer gave us a little more meat, with an authored article from Peter Mandelson, headed: "The Chequers Brexit compromise offers the worst of both worlds".

Whatever you might think of Mandelson as a person, he does have the experience as EU trade commissioner, and was highly rated in the post. And it's interesting that he too should refer to a "compromise". That's how I see the White Paper. Mrs May has not studied the ground to see what is needed to bring Brexit home. She has tried to steer a course between two extremes in the hope that both sides will give way.

Anyhow, Mandelson thought the plan would please nobody, but assumed that the public might conclude that these proposals represent the best available. In reality, he says. "it's a spatchcocked, half-in, half-out plan".

In his view, every aspect of the plan is fraught with uncertainty about how it will operate in practice and whether it will endure. It will not, he says, "be agreed on by the EU in its present form because of the issues of principle it raises for EU trade policy".

Mandelson goes on to say that, "if it is somehow accepted as a starting point for negotiation there is no chance of the detail being agreed by next March". Its probable unworkability will only be exposed after Britain has left the EU, when Britain will have even less bargaining power than it has now.

That, it seems, is the very best the White Paper offers - a starting point for negotiation. With 17 months down the line, with a timetable that was already impossibly tight, all Mrs May has been able to do is cobble together a "spatchcocked, half-in, half-out plan" that might just keep us at the negotiating table.

Nevertheless, Mrs May does seem to hint – as she did during the Marr show – that there is room for more concessions. Yet this is precisely what the "Ultras" fear. Already concerned that she has gone too far, the brightest among them realise that "the plan" isn't enough. The government will have to go further.

There are enough clues, though, to demonstrate that Mrs May is not master of her brief. She really seems to have no understanding of Barnier's "ecosystem" of regulation, supervision and enforcement, and therefore will not realise that nothing short of the institutional structures of the EEA will give us what we need.

But, above all – as Mandelson observes – there simply isn't time to treat the White Paper as a starter for ten. It is out of our hands now.



Richard North 16/07/2018 link

Brexit: a scorpion's work

Sunday 15 July 2018  



Having regard to Theresa May's response to Nigel Dodds concerning the Irish "backstop", which I mentioned in yesterday's piece, there can be little doubt that, on this point alone, there can be no Withdrawal Agreement.

If that wasn't enough, though, a gimlet-eyed reader also noted another important intervention last Monday, this one by the DUP's Sammy Wilson. Addressing the prime minister, he noted that it had been argued that the policy agreed at Chequers "was necessary to protect the constitutional integrity of the United Kingdom, because it would avoid the need to implement the backstop arrangement with the Irish Republic".

Thus, Wilson asked: "Is it part of the agreement that the Government will sign a legally binding protocol with the EU that would treat Northern Ireland differently? If not, why is it necessary to have a divisive future trade arrangement that is designed to protect the constitutional integrity of the United Kingdom if that was never in jeopardy?

The prime minister's response to this was, to say the very least, instructive. "We have rejected the European Union's proposal in relation to the protocol", she said, then adding:
The expectation is that there will be a protocol in the withdrawal agreement, but we have always made clear our belief that the best resolution of the issue of the border between Northern Ireland and Ireland will come within the overall trading relationship that we develop between the United Kingdom and the EU, and that is exactly what this plan delivers.
Again, we see another interesting use of the indefinite article – experienced in the Brexit debate when discussing the customs union as against a customs union.

Here, we see the distinction between the protocol and a protocol. Explicitly, Mrs May is saying that the current text has been rejected, but she keeps open the proposition of another text being agreed. Implicitly, this has to be different to the original text. It could hardly be the same, otherwise Mrs May would be agreeing the protocol.

If we go back to December's Joint Report and the infamous paragraph 49, we recall the statement that: "The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements".

It was intended at the time (and remains the intention) that these objectives would be achieved through the overall EU-UK relationship. But, if this was not be possible, the United Kingdom would "propose specific solutions to address the unique circumstances of the island of Ireland".

Then, in the absence of agreed solutions, the UK would "maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement".

With respect to the commitment to maintain "full alignment" with the rules of the Internal Market and the Customs Union, this did not pre-suppose that Northern Ireland would remain in either the Internal Market or the Customs Union – merely that the relevant rules should continue to apply.

Clearly, the "overall EU-UK relationship" as set out in the White Paper is not sufficient to avoid a hard border, whence there must be "specific solutions to address the unique circumstances of the island of Ireland", failing which there was the so-called "backstop", which was set out in the protocol to the draft agreement.

With that protocol now firmly and unequivocally rejected, there is no "backstop" in place. Before there can be any further progress on the Withdrawal Agreement, a new protocol text must be produced and agreed.

Given that the "backstop" was supposed to have been settled in June and that there are no new proposals on the table, it does not seem possible that a new draft could be prepared and agreed by the time of the next European Council in October, even if the EU was prepared to discuss the issue.

And it must be remembered that, if any proposal from the UK lies outside the EU's current negotiating guidelines, M. Barnier must go back to the European Council for a new mandate. His first opportunity to do that would be in October, which necessarily precludes an agreement by that Council of a protocol which differed substantially from the original.

However, even with that hurdle out of the way, we still have the overall relationship to address. And that gives Booker his theme for this week's column (no link yet).

Ever since 17.4 million of us voted to leave the European Union, he says, we have been confronted with one question overriding all others: how could we free ourselves completely from the political structures of the EU without doing irreparable damage to our economy?

Through more than 40 years of European integration, the UK economy has become so enmeshed with those of the rest of the EU, that a vast tranche of our economic activity is only legally authorised by a thicket of EU laws.

Was it possible, he asks, that we could extricate ourselves entirely from the EU, while holding on to that economic relationship which, in exports alone, provides 14 percent of our national income, also yielding a hefty slice of Government tax income?

Even before the referendum, he reminds his readers that some of us were urging that there was only one practical way we could get pretty well all we wanted: to become a fully independent country, freeing ourselves from three quarters of the EU’s laws, while continuing to enjoy "frictionless" trade, and also free to sign trade deals across the world, and even to exercise some control over EU immigration.

This was to remain in the wider European Economic Area (EEA) by re-joining Norway in the European Free Trade Association (EFTA). Membership could have solved virtually all the problems which have proved so intractable, including the Irish border, But Theresa May chose instead to leave the EU's economic system altogether, to become a "third country".

Thus have we wasted 17 months discussing entirely fanciful proposals, each of which contradicted the "core principle" which the EU made clear even before we triggered Article 50: that “it will not be possible to cherry-pick and be a participant in parts of the Single Market", to enjoy a uniquely privileged status not open to any “third country” outside the EEA.

Yet, Booker declares, what is Mrs May’s latest proposal, which has provoked such uproar, but again exactly that. It is so detached from reality that it can only end next March in the ultimate disaster, where we crash out without an agreement. Few people in Britain yet have any idea of the chaos which will ensue, as we are shut out of our largest export market and much besides.

Whole industries will go into meltdown. It would be the gravest economic crisis in our history. And we shall have brought it entirely on ourselves, because those in charge of our affairs have never begun to understand the technical realities of what we were up against.

That sums up the Booker view, but it is clearly not one shared by his own newspaper. The Telegraph view is that Brexit needs to be "urgently renegotiated" and, if the EU refuses, the Government has other options at its disposal.

One of the few positives to emerge from the Chequers meeting, the paper says, was a commitment to step up plans for "no deal". These, it says, must be accelerated massively. The Government should be publicly preparing to inject billions into the economy to mitigate any short-term economic uncertainty.

Then, according to the Telegraph, the government should make it clear that "bizarre threats" to, for example, "cut off electricity supplies to Northern Ireland or prevent British planes from landing in European airports are insulting and unacceptable, and will receive a resolute response".

And this is as far as it gets although, symbolically, the clown Hannan would vote for Mrs May's Brexit plan – not that he would get a chance, being a lowly MEP.

Taking on the Telegraph's response to the "bizarre threats", though, it should be aware that there are laws made by the EU, with the active participation of the UK, which prohibit the sale of electricity to third countries via an interconnector, unless there are specific agreements in place to manage the transfer. Equally, no third country airliner may land at an EU/EEA airport unless it conforms with the Third Country Operator safety checks, as administered by EASA.

These are laws which, to date, the UK has been entirely content to have applied. Yet it appears that, when those same laws apply to the UK as a third country, they become "insulting and unacceptable".

Nevertheless, the chances are that the UK will not get a chance to decide whether it wants to be "insulted" by "unacceptable" laws. Mrs May has to resolve the "backstop" and, if it is anything close to being acceptable to the EU, the DUP will most certainly reject it.

There are those who say that, for the DUP to stand its ground would bring down the Conservatives and thus, also, deprive the DUP of its influence. But we are not looking at rational behaviour here. The DUP is the scorpion to Mrs May's frog. It will sting her to death midstream, and drown itself – because "that's what it does".



Richard North 15/07/2018 link

Brexit: the Irish conundrum

Saturday 14 July 2018  



It was inevitable that the Trump visit was going to distract the media from the detail of Mrs May's White Paper. But then, it takes very little to distract the legacy media. But when it comes down to it, Trump is just noise. We are not negotiating Brexit with the United States. What its president says, in the short-term really doesn't matter.

What does matter, and really matter, is Ireland. Whether we like it or not, the outcome of Brexit depends on resolving the Irish border question. And upon that depends the fate of the United Kingdom. For, despite the fatuous, malign ignorance of the likes of Liam Halligan, "no deal" is not a walk in the park.

In fact, Halligan, in asserting that Britain "already conducts most of its trade outside the EU, largely under WTO rules", is lying. And he must know he's lying. Furthermore, what he's doing is irresponsible. It's equivalent to shouting "fire" in a crowded cinema auditorium – dangerous public misinformation on an industrial scale.

What we really need to know is whether our Government is going to do enough, in the words of the White Paper, thereby "preserving the constitutional and economic integrity of the UK and honouring the letter and the spirit of the Belfast ('Good Friday') Agreement" (GFA).

But therein lies the essence of the Irish conundrum. Honouring the letter and the sprit of the GFA means avoiding a hard border between Ireland and Northern Ireland. On the other hand, "preserving the constitutional and economic integrity of the UK" effectively prevents the establishment of a "wet" border, which is the necessary outcome of adopting the so-called "backstop" solution.

As far as Mrs May is concerned, the "partnership" outlined in the White Paper "would see the UK and the EU meet their commitments to Northern Ireland and Ireland through the overall future relationship". Yet, despite that, the UK is prepared to accept the "operational legal text the UK will agree with the EU on the 'backstop' solution as part of the Withdrawal Agreement will not have to be used".

This convoluted wording is to be found in the Chequers statement and it is repeated verbatim in the White Paper. And, to say it is ambiguous is not an overstatement. On the face of it, it could mean that Mrs May is prepared to accept the protocol on Ireland/Northern Ireland, something to which, she has said, "no British prime minister could ever agree".

That she might be prepared to backtrack was certainly something that concerned Nigel Dodds, MP for Belfast North and deputy leader of the Democratic Unionist Party. Last Monday, in questions following her statement on the Chequers cabinet meeting, he tackled the prime minister on "the continuing obligation of the Government to the so-called backstop arrangement".

Dodds asked her to "make it clear that as far as the backstop is concerned she stands by her rejection of the EU's legal interpretation and there will be no constitutional, political or regulatory differences between Northern Ireland and the rest of the UK".

The prime minister's response was unequivocal. "I am happy to say", she told Dodds, "that I continue to reject the protocol proposal of the so-called backstop put forward by the European Commission earlier this year". Continuing, she said: "The fact that it would have effectively carved Northern Ireland away from the rest of the UK and kept it in the customs union and most of the single market would have meant that border down the Irish sea - that is completely unacceptable to the Government of the UK".

This was picked up by the Irish Times but scarcely, if at all, by the UK press. Even then, the significance was not explored and, since then, reportage on Brexit has been swamped by the rush of resignations, followed by the Trump visit.

But what Mrs May has affirmed is that the "operational legal text" in the protocol has been junked by the UK government. The text to which it "will agree" is something that has yet to be tabled and, if it is ever agreed, the UK expects that it will not be used.

From our partial evaluation of the UK's proposed partnership agreement, however, it is manifestly clear that it does not offer a solution to the Irish border – not least because the "Single Market in goods" does not have the slightest chance of being accepted by the EU.

The net effect of the Chequers cabinet meeting, the statement and then the White Paper, is to put us back to a position before the draft withdrawal agreement was published – on 15 March. To think that we were back to square one would be optimistic. We have landed on the "go to jail" square, and don't even get to pass "go".

So far though, we can see Barnier and the "colleagues" playing this low key. This is entirely as expected, and very much accords with what we were led to believe was the way it would be played. Even Leo Varadkar is restrained in his response. He describes the White Paper on Brexit as an "evolution" of the UK's position, but does not see it as a solution to Brexit.

Understandably, the EU collective has no interest in pulling the plug on the talks until preparations for the UK crashing out are very much more advanced. And then, it will be tactically more appropriate for the UK to be seen as jumping, rather than being pushed. We need not, therefore, expect much drama over the next few months.

An indication of the way things will be played comes here with a report that the European Commission's "preparedness unit" has given Member States "strongly worded guidelines" on stepping up contingency planning to cope with a "no deal" scenario. This, it is understood, was drafted after the publication of the Chequers statement.

The guidelines warn Member States to make preparations across a range of areas, including customs, aviation and controls on food, animal and plant products, and financial services.

"Although the withdrawal of the United Kingdom may appear to be playing out at a very high and rather abstract level between the United Kingdom and the EU,” they say, "its consequences will be very real for citizens, professionals and business operators".

Under the "no-deal" scenario, the guidelines advise Member States that, "the EU must apply its regulation at all borders with the United Kingdom as a third country, including checks and controls for customs, sanitary and phytosanitary standards and norms verification, movement of persons (potentially including visa requirements) purposes".

Thus, while the absurd UK legacy media frets over how the Conservatives are reacting to their leader's White Paper, and whether it might be acceptable to Parliament, the real world focus is elsewhere, on how to cope with practical problems of considerable magnitude.

Here, though, there has been what could have been taken as a flash of realism, with The Sun reporting that ministers have drawn up "secret plans" to stockpile processed food in the event of Brexit talks collapsing. Similarly, there is some recognition that supplies of electricity might be at risk, through loss of the interconnectors.

However, rather than examples of sensible planning, responses are being cast as gesture politics, to show Brussels that "no deal" is not a bluff. Yet, Brussels is way ahead of the game. With the White Paper being framed by some as the last and best "offer" from the UK government, the Commission is taking it as the most explicit confirmation that the Brexit negotiations are on the rocks.

And, as if we needed reminding, we are all conscious of the sequence: if there is no settlement of the Irish border question, there is no withdrawal agreement. And if there is no withdrawal agreement, there is no transition period. We crash out of the EU on 29 March next year.



Richard North 14/07/2018 link

Brexit: porcine aviation

Friday 13 July 2018  



The Government, says Mrs May's White Paper, "is determined to build a new relationship that works for both the UK and the EU". This is a relationship, the paper says, "which sees the UK leave the Single Market and the Customs Union to seize new opportunities and forge a new role in the world, while protecting jobs, supporting growth and maintaining security cooperation".

It goes on to say that the Government "believes this new relationship needs to be broader in scope than any other that exists between the EU and a third country". It should, it says, "reflect the UK's and the EU's deep history, close ties, and unique starting point".

Before the White Paper had been completed and signed off, though, it might have been a good idea if Mrs May had reviewed the EU position a little more carefully. A good start might have been Michel Barnier's speech to the Committee of the Regions in Brussels on 22 March 2017, only a week before the UK was to deposit formally its Article 50 notification with the European Council.

This speech was of special significance as it was entitled: "The Conditions for Reaching an Agreement in the Negotiations with the United Kingdom". And, as described by the label on the tin, that is precisely what Barnier did.

The challenge, he said, was "to build a new partnership between the European Union and the United Kingdom on a solid foundation, based on mutual confidence". That meant "putting things in the right order: finding an agreement first on the principles of the orderly withdrawal of the United Kingdom, in order to discuss subsequently – in confidence – our future relationship".

As to the partnership, Barnier readily conceded that there would be a free-trade agreement at its centre. This, he said, we will negotiate with the United Kingdom in due course. But, he added: it "cannot be equivalent to what exists today. And we should all prepare ourselves for that situation".

Re-stating the obvious, to give emphasis to the position, he noted that the UK "chooses to leave the Single Market and the Customs Union. It will be a third country in two years from now". And, by making this choice, the UK "will naturally find itself in a less favourable situation than that of a Member State". It will not be possible, Barnier said, "to cherry-pick and be a participant in parts of the Single Market".

If there was any doubt about the sincerity of this statement, and whether it represented EU policy with the full backing of the Member States, this was dispelled by the European Council's negotiating guidelines, published on 29 April 2017 – a month after the Article 50 notification.

This was M. Barnier's negotiating mandate, which remains in force right up to today. And right up front, it is "core principles", it stated:
A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member. In this context, the European Council welcomes the recognition by the British Government that the four freedoms of the Single Market are indivisible and that there can be no "cherry picking".
These principles were to be repeated and emphasised many times by many different speakers, and M. Barnier remained true to them, throughout. In Berlin, on 29 November 2017, Barnier was saying: "A third country, however close it may be to the Union, may not lay claim to a status that is equivalent or superior to that of a Member of the Union". And, on 13 March of this year, Commission President Jean-Claude Juncker reminded us that cherry-picking was not possible.

This was followed up by supplemental guidelines published by the European Council on 23 March. Here, it is stated:
… the European Council has to take into account the repeatedly stated positions of the UK, which limit the depth of such a future partnership. Being outside the Customs Union and the Single Market will inevitably lead to frictions in trade. Divergence in external tariffs and internal rules as well as absence of common institutions and a shared legal system, necessitates checks and controls to uphold the integrity of the EU Single Market as well as of the UK market. This unfortunately will have negative economic consequences, in particular in the United Kingdom.
The thing is, these are not just words. It is a serious weakness on the part of generations of English politicians to dismiss statements of continental politicians as rhetoric, devoid of meaning. But even if one wants to ignore the speeches, there is no getting round the negotiating guidelines. These are immovable.

Thus, when Mrs May expresses via her White Paper that she believes the "new relationship" that the UK wants to negotiate "needs to be broader in scope than any other that exists between the EU and a third country", she is tilting at windmills. She will get a "bog standard" FTA, the so-called Canada-dry deal – no more, no less.

Yet this has not percolated Mrs May's brain. She does not seem to be able to cope with the idea that Brexit means Brexit. It means we leave the EU and, when we do, we become a third country.

In this context, I have written many times about the EU's system for type approval of vehicles. Any and all third countries that want to sell cars within the territories have to submit their products forEU approval to a certification authority. After Brexit. UK certification will no longer be valid.

Yet, we see the White Paper blithely prattle about this subject, offering an "example" of mutual recognition of Vehicle Type Approvals. With the proposed "common rulebook", it says, the UK and the EU would continue recognising the activities of one another's type approval authorities, including whole vehicle type approval certificates, assessments of conformity of production procedures and other associated activities.

Furthermore, it says, "Member State approval authorities would continue to be permitted to designate technical service providers in the UK for the purpose of EC approvals and vice versa", and "Both the UK and the EU would continue to permit vehicles to enter into service on the basis of a valid certificate of conformity".

This is pure, unmitigated fantasy. There is not a single country outside the Single Market that is permitted this facility. And, at the very least, if the EU permitted the UK to certify vehicles, it would be forced under WTO non-discrimination rules to permit every other nation the same rights – driving a massive hole in the Single Market.

There are no possible circumstances, therefore, where this is going to happen. Mrs May and her government are deluded in even suggesting this as a possibility.

But the delusion does not stop there. The UK is also proposing a "common rulebook on agri-food", which "encompasses those rules that must be checked at the border". Its adoption, it says, "would remove the need to undertake additional regulatory checks at the border – avoiding the need for any physical infrastructure, such as Border Inspection Posts (BIP), at the border between Northern Ireland and Ireland".

Again, this is fantasy. Outside the Single Market, with the one very special exception of Switzerland - which adopts in its entirety the food-related Single Market acquis and has all its imported goods run through BIPs – there is not a single country anywhere in the world that is permitted to by-pass the border inspection system.

There is an outside possibility that, if the UK adopted the entire acquis, plus the surveillance and enforcement systems, and opened up his premises and government agencies to EU inspection, and also undertook only to import foods which conformed with EU law, inspecting them at the border through BIPs at it does now, then the EU might waive border inspection.

However, that would trash the idea of "taking back control" and also any idea of separate trade deals on agri-foods with the United States and other potential partners. Already in trouble with the "Ultras", Mrs May would be torn apart if she conceded such a scheme.

The trouble is, it doesn't stop there. Pharmaceuticals get the same delusional treatment. So do chemicals under the REACH regime, and aviation safety is treated as if Brexit will not exist. The UK government blithely assumes that it can continue to certify those functions it already does, while EASA will retain its current functions and third country provisions will not apply.

Here, the very special case of Switzerland is cited, which again requires the adoption of the whole acquis and regulatory oversight implemented via a formal agreement with the EU, which comes under the jurisdiction of the ECJ.

Even if the UK could accept this, and thereby breach its own red lines, it is unlikely that this agreement would be repeated for the UK, as there are new legislative provisions which set out the parameters for international cooperation.

In short, this White Paper is a litany of delusion – and we haven't even looked at the Irish issue, much less the other matters. We'll attend to this tomorrow, but already we see the porcine aviation out in force. There is not the slightest chance of this being accepted by the EU.



Richard North 13/07/2018 link

Brexit: debating the future

Thursday 12 July 2018  



Picking up on the oaf Johnson's resignation, Channel 4 "fact check" has reheated its earlier 2016 piece on his comments about cyclists, reproducing almost verbatim their assertions about his lack of grasp on EU vehicle safety issues.

Since then, the authors have learned nothing – and as a result add nothing to the debate. Even in 2016, to discuss vehicle safety in the EU context without also bringing in UNECE and WP.29 was a mistake. To repeat it more than two years later is more than a mistake. It is negligence of the first degree.

If Channel 4 was really interested in facts, rather than cheap-shot polemics, it would have found out more. After all, it had a good steer from the prime minister. But when she knows about UNECE and one of the supposedly premier "fact check" services doesn't, there is something seriously amiss.

What we've got, therefore, is an illustration of why the Brexit debate isn't progressing. Not only do we have in the media a level of ignorance so profound that you could cut it with a knife, there is no movement. It is as if the information they have is preserved in aspic, never to change for all time. Once a factoid is lodged, it is with us forever. It cannot be altered and it cannot be removed.

Not only is the knowledge base static, though, it is – as we have remarked before – determinedly Brit-centric. Even now, six days after the cabinet Chequers meeting, most of the press coverage on Brexit is so tediously Brit-centric that it is almost as boringly predictable as the world cup - although chess has never really been a spectator sport, even if the final went to a tie break.

However, when the debate is allowed to break out of the bubble, we get some interesting results which benefit both writer and readers. I certainly know more about WP.29 and UNECE than I ever did, and we're building here a constituency of knowledge which clearly outstrips anything the politico-media nexus has to offer. Between us, there is probably more understanding of key issues than you will see anywhere else.

Some of the details we confront are challenging. Looking at WP.29, for instance, the insight which comes with prolonged exploration of the detail takes us out of our comfort zones and in areas where conventional wisdom (if it actually exists on such arcane issues) no longer holds.

In summary, one has to say that the World Forum for Harmonization of Vehicle Regulations, stemming from an agreement in 1958, could be considered a failure or, at the very least, work in progress – either of which has important implications for us in a post-Brexit environment.

The thing about this blog though, is that I don't have to set myself up on high, talking down to the lower orders from a position of unreachable superiority, where I cannot be wrong and therefore never have to correct anything of substance. In an incredibly complex field, this is a learning process which means that we (myself and my readers) are stumbling through a maze of information finding out things as we go.

The relevance and particular interest of this issue is that the first WP.29 agreement, signed on 20 March 1958 was an attempt to create a common market for vehicle equipment and parts – an instrument which came into force just as the 1957 Treaty of Rome establishing the EEC was coming into play.

The focus of the EEC and its common market, of course, was the elimination of tariffs and "quantitative restrictions" (quotas). The Single Market wasn't to be established until 1993 yet here, 35 years earlier, we had a UN organisation based in Geneva, setting of a system "concerning the adoption of uniform conditions of approval and reciprocal recognition of approval for motor vehicle equipment and parts".

This, therefore, was an attempt to tackle the non-tariff barriers which the EEC and then EU was not to focus on for many decades. The first agreement was a relatively modest affair of 17 pages, written in French and English. The actual English text runs only to five pages.

The way that it worked was to set up a standard system for approving motor vehicle parts, on which basis regulations were drawn up, which were then recognised by all the parties to the agreement. There was no compulsion involved. Merely a system whereby, if equipment and parts were produced to a common standard and approved by any one party to the agreement, all the other parties would recognise the approvals.

It is worth noting here the terminology applied. This was not "mutual recognition", where parties recognised each other's standards. It was "reciprocal recognition", where uniform standards applied in any one country were recognised in all the others which were party to the agreement. The distinction is quite important, especially as UNECE now confuses the issue by using the terms interchangeably.

As to the 1958 agreement, was not a fixed document. Unlike the EU, which agreed a succession of new treaties, this one was constantly revised, growing in scope. By 1995, just after the completion of the EU's Single Market, we had Revision 2, which had grown to 12 pages of English text.

It is in this document that we see references to the concept of "type approval", formalising an administrative procedure "by which the competent authorities of one Contracting Party declare, after carrying out the required verifications, that a vehicle, equipment or parts submitted by the manufacturer conform to the requirements of the given Regulation".

What then gets really interesting is Revision 3 bringing us right up to 20 October 2017, the agreement having grown to a massive 43 pages of English text (including the header sheets).

Of the many developments, we see the Agreement breaking out of its earlier limits, where it applied only to equipment and parts. Writ large is a commitment to establish an International Whole Vehicle Type Approval scheme (IWVTA). No longer content with just the bits, UNECE, via its WP.29, was moving into the whole vehicle business.

As far as I can make out, though, this was actually a Japanese initiative. The concept was introduced to WP.29 in November 2007 and the proposal for the scheme was unanimously approved in November 2009. An informal group was established in March 2010 co-chaired by Japan and the EU.

The IWVTA scheme has since been formalised as Regulation No.0 (Regulation Zero) but, eleven years after the concept was introduced, it is still nowhere near fruition. The latest development is that we now have a "Phase 2 Informal Group" and it will "come up with a roadmap toward a full IWVTA by November 2018". There is no date set for completion.

It is to that extent that WP.29 can be considered a failure. But one also bears in mind that the original title, adopted in June 1952, was the "Working Party of experts on technical requirement of vehicles". Its current "World Forum" title was not adopted until 2000.

It is that which cements a second level of failure, where the objective is clearly global harmonisation. The Holy Grail is a system whereby any vehicle approved in any one country will be accepted in any other, throughout the world. But, where UNECE has manifestly failed to engage the United States or Canada (or Brazil for that matter), it can be regarded as a global system in name only.

However, alongside this, the European Union decided to align EU legislation to UN Regulations and UN GTRs, formalising a direct link in its own legislation to UN Regulations via Regulation (EC) No 661/2009 (see page 85). With the EU highly active on WP.29 technical committees, and the voting strength of the EU bloc, this has had the unfortunate side effect of transforming WP.29 into the tame "house regulator" for the EU.

As an option for the post-Brexit UK, therefore, involvement in WP.29 is not optimal, as it still keeps the UK within the regulatory orbit of the EU. Nevertheless, as I outlined yesterday, direct involvement of an independent UK does give us more control than we have at present.

The optimal outcome, though, is the completion of the IWVTA scheme, so that the UK is no longer dependent on the EU's type approval system before it can market vehicles in the territories of the EU Member States (or elsewhere in the world). And, in pursuing this, we would have in Japan a natural ally, which has the same objective and must be frustrated at the slowness of the progress.

Then, as also mentioned yesterday, a successful WP.29 could provide a model for other global harmonisation ventures, with the prospect of considerable economic dividends. And it is such issues that should now be front and centre in the Brexit debate, instead of sterile, repetitive tedium to which the politicians and media have condemned us. There is life outside the EU, and there is more to global engagement than the tired concept of the bilateral free trade agreement.

That we are still stuck in a rut is an indictment of the entire system in the UK, from the politicians and media, to the think tanks, academics, policy wonks and industry groups. None of them are contributing anything constructive to the debate and it as a sad reflection that it is left to the blogs to do their work for them.

It is fair to say though, that until we break out of this rut, the Brexit debate is going nowhere.



Richard North 12/07/2018 link

Brexit: the key to prosperity

Wednesday 11 July 2018  



For over a decade I have been using the UN Economic Commission Europe (UNECE) as an example of a producer of global standards, illustrating how rule-making has gone up a level, turning the EU into a rule-taker.

This is particularly the case with the World Forum for Harmonization of Vehicle Regulations (WP.29), a working party which is administered by UNECE. It produces regulations for vehicle construction which the EU then adopts as harmonising measures, covering all aspects of vehicle safety, including crash testing standards.

This then means that vehicle manufacturers which want to trade in the EU (and the Efta states) must comply with regulations. Only then can they gain the coveted "type approval" which is their license to sell their products in the territories of the EU/Efta Member States.

There are actually two levels of regulation. There are those produced under the 1958 Agreement, to which there are 52 contracting parties. Currently, there are 127 regulations (termed UN Regulations) appended to the Agreement. Under the separate 1998 Agreement, to which there are only 33 contracting parties, procedures are laid down for producing what are known as Global Technical Regulations (GTRs), currently eleven in number.

The EU, which is a contracting party to both these agreements, adopts both types of regulation, giving preference to them in its law, having replaced their own. Yet, within the narrow constraints of the Brexit debate, the idea of the EU being afforded the status of a rule-taker rather rains on the parade of those who seek to cast the UK in a similar role.

This has special relevance in respect of the argument about the UK remaining in the EEA. The claims made by the opponents of this option is that, from having the ability to participate in the making of law while we are in the EU, we drop out and end up having to accept EU law with no say in their making.

However, as illustrated by the UNECE WP.29 example, far from becoming a passive rule-taker, we take back our independent vote in the working party and thus have a direct say in what regulations are adopted at the global level. Their position, therefore, is reversed. The UK becomes one of the rule-makers and the EU becomes the rule-taker.

This is the scenario which I had sketched out yesterday, representing uncomfortable reading for those who want to insist that the UK is weakened by staying in the EEA. And one of those is former Labour activist, now turned vehicle safety campaigner, David Ward. He has recently banging the drum about UNECE, asserting that our post-Brexit position will be substantially weakened.

With that in mind, on his own blog, in a post dated 7 June of this year, he confronts one of the central claims of the leave campaign - taking back control. Interestingly, Ward cites Mrs May's Mansion House speech.

In that speech, he states, Mrs May argues that many EU product rules "are underpinned by international standards set by non-EU bodies of which we will remain a member – such as the UN Economic Commission for Europe (UNECE), which sets vehicle safety standards". This, according to Mr Ward means that Mrs May is implying that, by going global, Britain has nothing to lose.

Enter then the heroic David Ward, who grandly declares that Mrs May's argument "displays woeful ignorance of the reality of rule setting in the UNECE which is dominated by one large block of nations – you've guessed it, the EU".

Ward acknowledges that WP.29 is an important global standard setting body, claiming 54 rather than 52 parties to the 1958 Agreement. At its meetings in Geneva, he says, about 38 governments usually attend including EU Member States but with a crucial difference; the EU vote together as a block of 28 countries.

Then, according to Ward. decisions in the World Forum require a four-fifths majority but this is easily achieved by the EU. So, he says, "Therese May got it backwards; it is EU decision-making that underpins the adoption of UNECE regulations and not the other way around".

The most neutral way one might couch a response to these assertions is to say that some of the facts are not correct. For a start, the "four-fifths majority" figure that Ward cites does not apply to the approval of regulations. According to the 1958 Agreement this applies only to the proceedings of the administrative committee when they consider whether to admit a draft regulation (or amendment) for consideration.

Then, according to the so-called "Blue Book", new UN Regulations and amendments to existing UN Regulations are established by a vote of two-thirds majority of Contracting Parties present and voting. But it does not enter into force if then one third of the contracting parties object within six month of the vote. In other words, 18 members can block a regulation.

On the other hand, to establish a new UN Global Technical Regulation, there must be a consensus vote. Thus, if any contracting party votes against a recommended UN Global Technical Regulation, it would not be established.

However, crucially, the book goes on to inform us that UN Regulations, UN GTRs and UN Rules developed under WP.29 are "optional". They do not carry the force of law until they are adopted and implemented by contracting parties to an Agreement into their national laws.

A separate document confirms that once a UN Regulation comes into force, it only binds legally those contracting parties which sign it. But it is not an obligation. They do not even have to adopt any of the UN Regulations. Furthermore, a Contracting Party can cease applying any Regulation at any time giving one year's notice.

On this basis, once it has left the EU and resumed an independent role in WP.29, the UK can participate in the production of UN Regulations which the EU, by its own rules, must adopt. But there will be no obligation on the part of the UK to adopt them, if it wishes not to do so (unless, of course, we stay in the EEA). Working with other countries, it can also block the EU's attempts to create UN Regulations – something which it could not possibly do as an EU member. And it can apply an absolute veto on GTRs.

This is a very different picture to that painted by David Ward, but it did not stop him on 12 June getting an article published in Auto Express lobbing in assertions similar to those he makes on his blog.

The latest "mark" for the Ward treatment, though, is Open Democracy, which ramps up the rhetoric, purporting to tell us: "How the UK is set to become a second-hand dealer in EU automotive regulation". Referring back to Mrs May's speech, Ward tells us that "it is time that reality and a hard-headed assessment of the UK's national interest should take precedence over the vague assurances offered by Theresa May".

To retain a strong influence in global automotive policy-making, he claims, "we need to remain in the Customs Union and the Single Market". This, he then says, "should be negotiated with a specific agreement to maintain UK participation in motor vehicle policy-making both in Brussels at the EU and in Geneva at the UNECE".

That, he asserts, "is the way for us to keep some ownership over a rule-making process that is vital for our vehicle manufacturing industry, environmental protection, and the safety of millions of us using our roads".

To make such assertions is so easy to do when you have gullible publishers who do not force you prove your claims. But the fact is that leaving the EU gives us a direct voice in the making of EU vehicle safety regulation, without us being in any way obligated to adopt them nationally if we're outside the EEA.

Of course, if we do not, we will not be able to export vehicles to EU/Efta states. But that would apply with or without UNECE involvement. But, in any event, where we would score significantly is in the ability to align ourselves with the United States and Canada (which are UNECE members) and address what amounts to an abuse of the voting system by the EU.

Although Ward feels it is an advantage, the EU is rather like the Soviet Union which in the bad old days kept the UN votes for its "autonomous republic", so that it could vote multiple times on the General Assembly. Thus, although it is a single bloc, the EU has 28 votes (soon to become 27), while the United States and Canada have but one vote.

This is one of the reasons why these two countries do not participate actively in WP.29 but, until they do, it can never really be regarded as a global system, even though Japan and Korea are part of it. The UK leaving the EU could be treated as a first step in redressing the balance, reducing its voting power which must be diminished still further.

In this context, the EU does us no favours. The stronger it is on UNECE, the less likely it is that we will get full engagement by the North Americans. In effect, a strong EU makes for a weak WP.29. And here, the penalty is not just confined to vehicle production. WP.29 could provide the model for harmonisation of the rules on medicines – the Holy Grail of global regulation.

The benefits of such global harmonisation far outstrip the relatively modest gains we could get from forging new bilateral trade agreements, so there is everything to play for. A newly energised UK, with a voice of its own, could help kick-start the process, adding untold wealth to the global economy.

And in that sense, greater participation in UNECE is not an arcane, theoretical concept. It could actually be the key to our post-Brexit prosperity. And the chance to turn the EU into a rule-taker is simply not one we could let pass by. The irony is too delicious.



Richard North 11/07/2018 link

Brexit: goodbye to the oaf

Tuesday 10 July 2018  



Considerably fewer tears than might have been expected have been shed over the loss of the Conservative's once favourite son, as Alexander (aka "Boris") Johnson departs from the Foreign Office in a typically shambolic fashion.

Self-important as always, Johnson penned a resignation letter claiming that the Brexit dream "is dying, suffocated by needless self-doubt", with large parts of the economy still locked in the EU system, but with no UK control over that system.

Like so many, including David Davis who had only resigned hours before, Johnson is obsessed with what he sees as the "rule taker" status of the EU, complaining "it now seems that the opening bid of our negotiations involves accepting that we are not actually going to be able to make our own laws".

Indeed, he writes, we seem to have gone backwards since the last Chequers meeting in February". It was then, he asserts, that he described his frustrations, as Mayor of London, in trying to protect cyclists from juggernauts.

In this, he claims that TfL had wanted to lower the cabin windows of heavy goods vehicles to improve visibility. And even though such designs were already on the market, and even though there had been a horrific spate of deaths, mainly of female cyclists, he asserts: "we were told that we had to wait for the EU to legislate on the matter".

Clearly, it was things like this which he had in mind when, at the previous Chequers session, "we thrashed out an elaborate procedure for divergence from EU rules". But, he whinges, "even that seems to have been taken off the table and there is in fact no easy UK right of initiative".

If Brexit is to mean anything, he avers, it must surely give ministers and Parliament the chance to do things differently to protect the public, then adding: "If a country cannot pass a law to save the lives of female cyclists – when that proposal is supported at every level of UK Government – then I don't see how that country can truly be called independent".

The cycle story, however, is one that Johnson has used before, is his Telegraph column in March 2016 (a few months before the EU referendum). Then he claimed to have discovered in 2013 that "that there was nothing we could do to bring in better-designed cab windows for trucks, to stop cyclists being crushed". It had, he said, "to be done at a European level, and the French were opposed".

This was picked up by Channel 4's Fact Check (dated the previous month) which observed that this sounded like Boris, as London's cycling-friendly mayor, wanted to redesign lorries to make them safer, only to be thwarted by the EU, and the French in particular.

Needless to say, Channel 4 decided that this story didn't fit the facts. In 2014, it asserted, citing a BBC source, the European Parliament had voted "overwhelmingly" to change the shape of lorry cabs to cut cyclist deaths, despite initial opposition from some national governments, including that of the UK.

This Channel 4 knew from the BBC article which identified "one B Johnson was a big cheerleader for the EU-wide changes, and a critic of the Conservative-led government's stance at the time". He was quoted as saying: "If these amendments, supported by dozens of cities across Europe, can succeed, we can save literally hundreds of lives across the EU in years to come. I am deeply concerned at the position of the British government and urge them to embrace this vital issue".

According to this narrative, the French and Swedish governments had tried to delay implementing the changes for ten years, but they failed, and new regulations would come into force in 2019. Thus, Channel 4 asserted, "it's not true that 'there was nothing we could do'. The European Parliament actually implemented the changes backed at the time by Boris himself". It’s hard to see, it concluded, "why he's criticising the EU over this now".

One thing Channel 4 does not seem to have done, however, is actually read the resultant legislation, Directive (EU) 2015/719 or the subsequent proposal for implementing legislation set out in COM(2018) 286 final on "type-approval requirements for motor vehicles and their trailers, and systems, components and separate technical units intended for such vehicles, as regards their general safety and the protection of vehicle occupants and vulnerable road users".

Had they done so – and understood what they were reading - they might have reported differently, in a manner which goes to the very heart of the "rule taker" meme.

The reasons for this is that the Directive makes the desired changes contingent on "the necessary amendments to the technical requirements for type approval of the aerodynamic devices are transposed or applied and the Commission has adopted implementing acts laying down the operational rules…".

This is but one of several references to "type approval", carried over to 2018 proposal, currently going through the European Parliament, where reference is made to the standard harmonisation process at international level, through the United Nations Economic Commission for Europe (UNECE), and the need "to repeal several EU Regulations … and to replace them by equivalent UN Regulations".

To cut a very long story short, Johnson's appreciation of the situation puts him where we were in 2006 when Owen Paterson was shadow transport secretary and we were complaining about delays to road safety measures.

But even then, we were discovering what I called a "fatal confusion" which had the then current (Labour) transport secretary telling us that, "because of obligations under United Nations Economic Commission for Europe", we were "unable to make any unilateral requirement of vehicles in this country".

Around that time (September 2006), we were finding that many journalists had an extremely hazy idea of the role of the EU in road safety (which was a shared competence). By then,I was able to write a long piece setting out in detail EU involvement in this field, and in particular on what was to become a long-running saga on fitting reflective tape markings to the sides of HGVs in order to reduce side collisions. It was there again that I referenced the role of UNECE.

A couple of years later, on 17 December 2008, the Telegraph's David Millward> (their transport editor) was complaining that "EU laws" were stopping the UK Government from making foreign lorries carry safety mirrors. They were, he wrote, preventing the British Government from compelling foreign lorries to fit mirrors which would radically cut road accidents in the UK.

Then, I was able to write a comprehensive piece explaining the role of UNECE, pointing out that even the EU had to wait for this body to act before it could proceed to the legislative stage on safety modifications to vehicles.

In 2013, Johnson and his cycling commissioner Andrew Gilligan were planning on going to Brussels "to push the EU on safer designs of new lorries with better sightlines and fewer blindspots". A year later Johnson popped up again with his concerns about blindspots in lorries, stating that a forthcoming debate in the European Parliament was "a once-in-a-decade opportunity for the EU to remove some of the blockages which prevent us from making lorries safer in our cities".

When the European Parliament approved new rules though, this wasn't the end of the matter. In September 2014, I was making it very clear that UNECE played a pivotal role in any vehicle improvements. And, although Johnson has not then (or ever) mentioned UNECE, I suggested that he got on the next jet to Geneva, home of the UN body.

Another piece in December 2014, I wrote of delays in getting new standards approved, calling again for Brussels again to be by-passed, suggesting that Mr Johnson's successor should go straight to Geneva to lobby for new or additional laws.

Coming right up to date, this is precisely the option that would have been available to us if Mrs May had elected to keep us in the Single Market via Efta/EEA. It is through UNECE and other global bodies that an "independent" UK can best seek changes which largely have to happen at an international level.  

The greater point, though, is that Johnson, in complaining about having to abide by EU rules, has clearly learned nothing from his tenure as London Mayor (or foreign secretary), and does not realise that the laws he complains of most often have origins at a level higher than the EU. And, since it is the Member State which are involved in making framing the standards that become laws, it is the EU that become the "rule taker".

His bitter condemnation of Mrs May for leaving the UK with no control over the system betrays a fundamental ignorance about how the system works. It thus has Johnson and his allies fighting the wrong battles for the wrong reasons – effectively resigning because he has no idea of how the world really works.

Of course the current situation is unsatisfactory, but even at its worst, it is not as bad as Johnson paints it. And had he not objected to the Efta/EEA option, we would be so much better off – yet still adopting the same laws. Thus, as we bid farewell to the oaf, we lose someone who was unfit to make any useful contribution to the Brexit process. We are far better off without him.



Richard North 10/07/2018 link
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