Brexit: Mrs May's twilight world

Sunday 17 December 2017  

In 2004, I set up this blog with the late Helen Szamuely mainly to deal with the poor coverage by the legacy media of the European Union and the superficiality of their analyses.

At any time we would have been prepared to have wound up the blog had media performance improved and, after nearly fourteen years, my ideal scenario remains that. Nothing would please me better than to hang up my spurs in the knowledge that the media was doing its job properly.

After this weekend's performance, though, there is absolutely no chance of my early departure from the field. The media coverage of the European Council and its negotiating guidelines has been beyond dire, completely failing in its basic duty to inform.

Looking at Saturday's coverage in the print media, only the Financial Times and the Daily Telegraph even thought to run stories on their front pages and not anywhere did we see an adequate report explaining the content of the Council guidelines and their potential effect if the transition proposals are accepted.

When it comes to the factual reportage of the contents of an EU document, it seems that simple task is beyond the capability of both print and broadcast media.

It has thus taken more than a day for something of the story to emerge, the delay allowing it to be framed in terms of statements by Chancellor Philip Hammond and some of the more notorious "Ultra" politicians. The responses demonstrate yet again the inability of the media to process EU news unless it can be pinned to UK personalities, and expressed as a "biff-bam" conflict.

Looking at the broader context of this document, no sensible person will deny that a transition period is needed. It was this blog, after all, which argued – long before the referendum was announced – for the Efta/EEA option as a means of bridging the gap between full membership and the status we seek as a fully independent nation.

But for the EU to insist that we continue to be bound by the entirety of EU law in order that we should be able to continue trading with EU Member States, when the Single Market acquis extends only to about a quarter of the law in force, is neither necessary nor logical.

As such, extending the UK membership of the EU, but without representation, hardly qualifies as "transition". This is not a "bridge" from the UK's current situation to another, but an extension of it, delaying the point at which it must move from one status to the other. There is no gradual process. The leap at the end is just as severe as if there had been no extension.

That the EU's demands might even have to be considered, though, reflects Mrs May's basic error of going too early with her Article 50 notification, before an adequate (or any) exit plan had been devised. Had she followed the tempo of the Flexcit plan (without necessarily adopting the plan itself), she would have held off making the notification until alternatives had been devised.

The great advantage of the Efta/EEA option, of course, is that the technical adjustments necessary for us to continue trading with the EU could have been negotiated through the EEA institutions (and in particular the Joint Committee), leaving us only to negotiate the withdrawal (phase one) issues with the EU.

We could also have invoked Art 112, with almost immediate effect, thus taking full control of our borders and putting the EU on notice that we intended to manage the flow of migrants from EU Member States in the interests of the UK.

Now that we are in the position we are, though, we are left with very limited options. But again, this is a reflection of the same error, repeated. Mrs May had nothing constructive to offer for the overall exit plan, when she made her Article 50 notification, thus handing the political initiative to the EU.

Having then broached the idea of a transitional period in her Florence speech, she then failed to propose any detail, leaving it again for the EU to make the running.

But here, there error is even more profound, as Mrs May is not looking for a "transition", as such. In Florence – as she had previously – she referred to an "implementation period", working on the basis that we would have concluded an EU-UK trade agreement by March 2019.

What has been scarcely recognised is that, to this day, Mrs May sticks to her delusion, referring to "the implementation period that I proposed in Florence" in an authored piece in the Sunday Telegraph. This, she asserts, "will give businesses and families the time they need to implement the changes required for our future partnership with the European Union", notwithstanding that she has already been told that the "future partnership" will not be agreed by the time we leave the EU.

Mrs May writes of welcoming "the desire of the European Union to agree the precise terms of this period as soon as possible", seemingly oblivious to the fact that the EU has just spelled out its terms, with more detail to come in January. These make no provision for "implementation", as there will be nothing to implement.

Mrs May's delusional state, however, brings us to the Booker column, where he ponders over the "sudden positivity about our progress on Brexit", and argues that "there is still so much to be explained".

Twice in a week, he writes, we have been treated to euphoric claims about how well Theresa May's approach to Brexit is now going down with her EU colleagues.

But one must wonder, he says, whether our own politicians have all decided to take to heart that recent comment on his job from David Davis: "I don't have to be very clever. I don’t have to know very much". Behind all the fluff and wishful thinking, do any of them have any real idea even of where we have got to so far, let alone where we may be heading for?

For a start, Booker adds, none of the three "Phase One" issues has yet been fully resolved. The EU has made clear that by March it expects a legally binding agreement on all three, including that of the Northern Irish border, on which Mrs May has not yet given the faintest clue as to how she thinks in practice this could be done.

The only other two issues yet on the table are that Mrs May must explain, first, what she means by that "deep and special relationship" she keeps going on about; and, second, the nature of those “transition” arrangements allowing us to remain in the single market for two or more years even after we leave the EU in March 2019.

The EU has made clear that this will require a very complex agreement, which could take up to October to complete, requiring the UK to meet all the legal and financial commitments it would entail, justiciable by the European Court of Justice.

Although they are currently slow on the uptake, Booker observes that, "When our politicians finally grasp that, during this 'transition', we will still in effect be in the EU for two or more years after we have left it, without any power to influence its rules, all hell will break loose".

Even greater mayhem, he suggests, will erupt when they realise that the EU's rules cannot allow us to begin negotiating that even more complex "trade deal" until we have left, possibly condemning us to spin on in that "half-in, half-out" transition stage for five years or more after we voted to do so.

Like David "I don't have to know very much" Davis, not a single politician seems yet to have woken up to just what a minefield all this is heading for.

To conclude, Booker addresses directly the many of his readers who rage on his comments yet who seem to understand as little of the facts as our MPs. "I can only repeat", he says, "that if only Mrs May had not been reckless enough to decide that we should leave the European Economic Area, 95 percent of all these tortuous problems need never have arisen".

Whether this is too late to correct, I cannot be sure. But since the EU is determined that we should retain the greater part of our membership for the two years following what would be a notional Brexit, we may as well go the whole hog and apply for an extension of the two-year Article 50 negotiating period.

However, as long as our prime minister remains in a state of delusion about our status and the nature of our Brexit talks, no amount of extra time is going to make any difference. Until Mrs May is forced to confront reality, we will go blundering on in this twilight world of hers where, in her mind, everything can be fixed by a pre-dawn flight to Brussels.

This is a world where she can confidently assert that: "We have proven the doubters wrong and are making progress towards a successful exit from the EU", and believe everything she says.

Handmaidens to her delusion, though, are the legacy media, sustained by the many pundits and fellow travellers who cannot see the wood for the trees. Between them, they continue to skew the Brexit debate to the extent that misinformation is the standard fare.

Unsurprisingly, therefore, an ICM poll has 61 percent of voters supporting Mrs May's Brexit stance. With the media doing such an abysmal job – in the face of Corbyn as the only alternative – how could it be any different?

Richard North 17/12/2017 link

Brexit: the march to a vassal state

Saturday 16 December 2017  

As expected, the European Council yesterday decided to open what Donald Tusk called "the second phase" of the Brexit negotiations.

Also as expected, work on all withdrawal issues left over from phase one has to be completed. In addition, the transition arrangements have to be agreed. But that's it. There is nothing else until the March Council when, all being well, guidelines for the framework relationship will be produced.

Bearing in mind that the transition period was not originally part of the plan – and not formally introduced until after Mrs May's Florence speech - only by some perverse definition could this next part of the talks be called phase two. More realistically, it is phase one-plus – covering all the previous issues with one addition, the Council's transition proposals.

Details can be found in the final guidelines comprising three pages (without the cover sheet), nine paragraphs and approximately 750 words. They have survived mostly unchanged from the draft guidelines seen last week.

Crucially, paragraphs three and four, on the transition arrangements, have been repeated almost intact. In para three, the European Council notes the proposal put forward by the UK for a transition period of around two years, and agrees to negotiate on this.

However, the EU is demanding that during the period, the UK must obey the whole of the acquis. Meanwhile, as a third country, the UK will no longer participate in or nominate or elect members of the EU institutions, nor participate in the decision-making of the Union bodies, offices and agencies.

Here, there is a slight change from the draft, which referred to "EU institutions". Just to make it clear, this is extended to "Union bodies, offices and agencies".

And with that is spelt out the degree of humiliation which we are expected to accept. Stripped of all representation, for the two years of the transition period (or for however long it takes), we truly become a vassal state. Unlike the EEA where would have had substantial influence on the running of the EU, we are condemned to the worst possible outcome where our only option is to obey.

In paragraph 4, this humiliation is spelt out in more detail. The EU would have it that the transitional arrangements will be "part of the Withdrawal Agreement" – even though the provisions extend past what Article 50 would seem to allow. But that makes the arrangements part of a treaty obligation, from which there must be no deviation.

The arrangements must be clearly defined and precisely limited in time – with the word "precisely" a later addition. And, unlike most treaties - which are negotiated for the mutual advantage of all parties – the one-sided nature of this deal is there for all to see. It "must be in the interest of the Union", the guidelines say.

Furthermore, this draconian regime extends into the future, to cover areas as yet unspecified, giving the EU a carte blanche for the entire period. "In order to ensure a level playing field based on the same rules applying throughout the Single Market", the guidelines say, "changes to the acquis adopted by EU institutions, bodies, offices and agencies will have to apply both in the United Kingdom and the EU.

So the misery goes on. All existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply. The extent is made clear by a later addition not found in the draft. That, we are told, includes "the competence of the Court of Justice of the European Union".

There is then another less than subtle change. In the draft, the UK would "remain a member of" the Customs Union and the Single Market (with all four freedoms) during the transition. This has now been changed. Membership confers rights as well as obligations and the EU is not prepared to tolerate that. We are simply going to be allowed to "participate".

In another change, we see an important addition, with the requirement that we continue to comply with EU trade policy – thus preventing us signing up to third country trade deals for the duration. And we must apply EU customs tariffs and collect EU customs duties (thereby remitting about £2 billion a year to the EU), and ensure that all EU checks are being performed on the border vis-à-vis other third countries.

To all intents and purposes, for the entire transition period, we remain in the EU – but on the worst of all possible terms. We may escape the queues at Dover and all the other problems for the time being (if only to confront them again when the transition period is over) but, on 29 March 2019, we see Brexit in name only. We will not actually leave, at the earliest, until 29 March 2021 – with just a year to go to the general election, if Mrs May is still in office.

And, if this is the worst of what we must accept, that is only a matter of degree. The Union negotiator and the UK must complete work on the (phase one) withdrawal issues, including those which have not yet been addressed. The parties must then consolidate the results obtained and start drafting the relevant parts of the Withdrawal Agreement.

This, one must appreciate, is not kindly advice. Further negotiations are entirely conditional on this. They can "only progress as long as all commitments undertaken during the first phase are respected in full and translated faithfully into legal terms as quickly as possible". Furthermore, the European Council guidelines of 29 April 2017 "continue to apply in their entirety and must be respected".

As to Mrs May's trade deal, the blunt language of the guidelines is uncompromising. An agreement on a future relationship can only be finalised and concluded once the United Kingdom has become a third country, it says.

The Union will only "engage in preliminary and preparatory discussions with the aim of identifying an overall understanding of the framework for the future relationship, once additional guidelines have been adopted to this effect". Such an understanding "should be elaborated in a political declaration accompanying and referred to in the Withdrawal Agreement".

By paragraph seven, the language then gets even more compromising, with another change to the text from the draft. Originally, it said that the UK had "stated its intention to leave the Customs Union and the Single Market after the end of the transition period". But now the intention is "to no longer participate".

So we leave the Customs Union and the Single Market on 29 March 2019, but continue participating in them until the end of the transition period. Further trade and economic cooperation will then be "calibrated" in the light of this position.

In all of this, the EU's objectives are to ensure a balance of rights and obligations, preserve a level playing field, avoid upsetting existing relations with other third countries, and to respect all other principles set out in its guidelines of 29 April 2017, in particular the need to preserve the integrity and proper functioning of the Single Market.

If we ever get that far, bearing in mind that the Irish question will be almost impossible to resolve, the chances of negotiating a comprehensive trade deal in the two-year transition period are next to nil.

Interestingly, at the conclusion of the European Council yesterday, Jean-Claude Juncker refused to comment. But there was no need – the guidelines told us all we needed to know, and spoke for themselves. And there is more to come.

The European Council will adopt additional guidelines in March 2018, "in particular as regards the framework for the future relationship" and meanwhile calls on the UK "to provide further clarity on its position on the framework for the future relationship". That's as near as we'll get to trade talks.

The Council of Ministers will continue internal preparatory discussions, "including on the scope of the framework for the future relationship" and the Commission will put forward "appropriate recommendations" on the management of the transition, and the Council will "adopt additional negotiating directives" on the arrangements in January 2018.

Yet, for all that, the media response is patchy. Gary Gibbon, political editor of Channel 4 sees this as "news which Theresa May can put under the Christmas tree". At least the Guardian has noticed something is amiss, reporting that this "deal" leaves Britain "as an entirely captive supplicant until at least April 2021".

In broad terms, though, the guidelines say just one thing. The UK has been shafted – the only thing we don't get is the orange jump suit. The stupidity of Mrs May and her advisors and all those precious little groups of intellectual pygmies who eschewed the "Norway option" have led us down the path to perdition, the very outcome we could have avoided by re-joining Efta and staying in the EEA.

In the annals of stupidity, this ranks alongside the Charge of the Light Brigade, even if the survivors are going to walk away alive. By the time this has finished, they may well wish the Russian guns had mown them down.

Richard North 16/12/2017 link

Brexit: transitional delusions

Friday 15 December 2017  

There was probably only one thing of value to come out of yesterday's Treasury Committee report on transitional arrangements for exiting the European Union. That was the acknowlegment that there "remain differences" between the EU and the UK as to the purpose of transitional arrangements.

On the one hand, the EU-27 use the term "transition" and envisage negotiations on a long-term trade deal continuing during the interim period, while the UK is a "third country". On the other, the Government uses the term "implementation". It maintains that the purpose of this period is to provide time to adapt to a trade relationship that will be known and agreed by the end of 2018, when the Article 50 talks are expected to conclude.

The UK position was confirmed the same day in oral questions in the House, when David Davis responded to MPs' demands for clarity over the meaning of this self-same "implementation period".

Hilary Benn was the MP who raised the specific issue, noting that Davis had told the Select Committee that it was the Government's intention to conclude a free trade agreement with the EU by March 2019. Last Friday, however, the Environment Secretary had told the BBC's Today programme that ironing out the details of a free trade agreement and moving towards a new relationship would take place during the transition period.

When Benn asked for confirmation that that was the Government’s new position, Davis replied tangentially – which he so often does – with the answer: "The implementation period will be most valuable if companies know what the final outcome will be, because that will allow them to prepare for it. To that end, we will seek to conclude the substantive portion of the negotiation before then".

So there we have the latest position from the Secretary of State: the UK aims to have concluded "the substantive portion" of the free trade agreement by October of next year.

This is very much in accordance with what Davis told Andrew Marr on Sunday. There would, he said, "be some minor negotiation going, but we'd expect a substantive trade deal to be struck". To this, he added, by way of emphasis, "there will be tinkering but the substantive deal must be struck".

For all that, it cannot be said that Davis is on his own, as illustrated here in an exchange between Iain Duncan Smith and Mrs May during her report on the recent negotiations. IDS asked whether it was still the Government's position that that "implementation phase" which was to follow Brexit "will be used to implement all that has been agreed, and not, as some say, just to carry on with no change at all".

Replying to this, Mrs May said that the point of the implementation period was "to ensure that the changes necessary for the new relationship to work can be put in place", implying that the changes will already have been agreed. You cannot have an implementation period unless you have something to implement.

She then tells Anna Soubry that, "We have always said that we will be working to negotiate our full agreement on the future relationship that we have with the EU. Of course, it will not legally be possible for the EU to sign up to that agreement until after we have left and become a third country, because it is not possible for such an agreement to be signed while we are in the EU".

Yet, from Barnier himself, as recently as two days ago (faithfully recorded by and many others), came the unequivocal assertion that it will only be possible to draw up a "political declaration" on the future framework relationship between the EU and the UK, not a full trade deal.

But this time, he went further, suggested that Davis was being "wilfully optimistic" in his assertion that it would be possible to negotiate a trade deal and then sign it the moment we have left. Barnier told the press that Davis "has experience of European matters, we were ministers of European affairs at the same time … and he knows perfectly what is possible and what is not possible".

Nor is this at all new. We have a European Parliament report from March 2017 which states:
If all goes well, the 27 believe, two years could suffice for the completion of the Article 50 deal and a sketch of the future relationship in a political declaration. That would fit the wording of Article 50, which says the Union should write the withdrawal agreement "taking account of the framework for its future relationship with the Union". The details of the future relationship could then be negotiated during the transitional phase, after Britain leaves the EU.
As the negotiations have developed, we now progress to the supposed "phase two", to be agreed today by the European Council meeting as 27. If all goes as expected, transitional arrangements will be added to the mix and discussions on the future relationship will be held between the EU-27, a process to which the UK will not be invited. And there will be no trade deal on the agenda.

However, despite the clarity from Brussels, the UK government is not alone in its delusions. We also see the likes of Oliver Wright, writing yesterday for The Times, imbibing the Kool Aid.

Mrs May, he told us, was heading to Brussels where she was "expected to use the opportunity both to urge the 27 other nations to quickly set a mandate for trade talks and to reassure them that the government will be ready to make the trade-offs necessary for a deal to work". But the other 27 nations are not going to "set a mandate for trade talks" and to write about any such expectation in such terms is to perpetrate nonsense.

The Times has that much in common with the Mail which also had Mrs May arriving in Brussels "to press the case for trade talks".

ITV News does even better, reporting that "EU leaders are preparing to rubber-stamp the decision to move Brexit negotiations forward to trade talks", wording that the Evening Standard has also chosen to adopt.

Even the self-important BBC, ever-ready to regale the world with its "reality checks", reports that "the European Commission has said 'sufficient progress' has been made on the first phase to move onto discussing the framework of a future relationship between the EU and UK - on issues such as security and trade".

One gets similar imprecision across the Atlantic, in the Wall Street Journal which tells us that "European leaders at a two-day summit in Brussels are set to approve a hard-won divorce deal with the UK that opens up the door to trade talks".

Even where the media are reporting on the actual event following the first day of the European Council, they get it wrong. A classic example is the Independent which late yesterday was headlining: "Theresa May accepts EU plan to postpone real trade talks until March". In fact, what the paper is doing is confusing the framework relationship talks with the trade talks proper – altogether different things.

Before the EU will consider framework discussions with the UK, it wants the UK to provide further clarity on its position – with a deadline set for the March European Council.

As to the actual agenda, Mrs May is still sticking to her own rhetoric, referring to an "implementation period", even though the EU consistently refers to "transition", with Donald Tusk, in particular, referring to an immediate start on negotiating the transition period, with no attempt to prepare a mandate on trade.

The focus on non-existent trade talks, therefore, is redolent of the situation in December 2011, when David Cameron supposedly cast a "veto" on a proposed treaty that had yet to be formulated. Yet this fictional veto was dutifully reported by most of the media as if it had been real. This is how these fantasy issues take on a life of their own and, without a corrective, become part of the historical record.

In this case, though, there will be a corrective. As we creep up to the October deadline when the Article 50 talks are set to finish, it will be impossible to disguise the absence of a trade deal.

No amount of double-speak and delusion from Davis, or his boss May – if she is still in office – will hide the fact that there have been no substantive negotiations and nothing to carry us forward other than transitional arrangements and a political declaration on the framework relationship.

Long before then, one expects that the humiliating transitional terms to have broken cover but, for the moment, they are scarcely mentioned in the legacy media. Today will be the start of that process when the next set of negotiating guidelines are formally approved and published by the European Council.

It will be interesting to watch the responses and start a book running on the time it takes for the penny finally to drop.

Richard North 15/12/2017 link

Brexit: grandstanding

Thursday 14 December 2017  

Since 1972, Parliament has been sitting on its hands, allowing successive EU treaties to be signed. It has then been content to ratify these treaties, holding unto itself only the power to make the decisions as to whether more and more of its powers should be outsourced to Brussels.

Then, when it finally came to whether we should leave the EU, the people made the decision, in the face of a parliament that, on balance, supported continued membership. And now that the people have decided and the government is in the process of implementing their decision, some MPs have rediscovered "democracy" and have demanded a vote on the withdrawal settlement negotiated under Article 50.

Having awarded themselves this vote, if Dominic Grieve's amendment survives (which it probably won't), they could severely damage the withdrawal process. Once the Article 50 settlement has been concluded, there is no provision for it to be renegotiated if any of the parties reject it, leaving the possibility of the UK crashing out of the EU without a deal.

In theory, MPs could rescue us from a bad deal, but since its effects could not begin to match the consequences of no deal,  MPs have awarded themselves the power to turn a crisis into a potential disaster - all in the name of democracy. What happens, for instance, if the European Council and Parliament approve the deal and Westminster says "no"?

The fact that we are confronted with this situation is, of course, highly unsatisfactory, but one should note that the essentially flawed Article 50 came with the Lisbon Treaty. This was approved by parliament – after a referendum had been rejected. That makes it parliament's mess (in part) – they need to put up with it, just like the rest of us have to.

Much of the angst is, in any event, special pleading. The wording of the Article 50 settlement is only a very small part of the overall withdrawal process, with little lasting effect (barring, of course, Northern Ireland, which could as yet scupper the deal).

But if I am right in my assessment, then the transitional arrangements will need a new treaty, as will any trade deal agreed with the EU. And in both instances, parliament will get a vote, if it can be bothered. The UK ratification process makes provision for a vote if parliament demands it.

Given the quality of the debates we see in the House, and the average MP's understanding of EU and trade issues, any debate leading to such votes would hardly we worth the time. In any case, since most MPs vote on party lines, the outcomes would mostly be pre-ordained. But the point is that parliament does have the power to make a difference. Mostly it doesn't bother. It just makes noise – rather a lot of it.

As much as anything then, yesterday's vote represented nothing very much, other than an opportunity for MPs to indulge in yet more grandstanding – which is about the only thing they're any good for. It also reflected the inwards-looking nature of the institution and the chronic parochialism which elevates local interests above far more important events happening elsewhere.

One of those events took place in in Strasbourg, where Michel Barnier spoke to the plenary session of the European Parliament, reporting "on the extraordinary negotiation with the United Kingdom and on the first result we reached last Friday". From that one speech, we glean more information of use to us than we get from a bucket-full of Westminster effluvia.

Central to Barnier's speech was a reminder of his core philosophy. In this negotiation, he said,
… our state of mind has never been to make mutual concessions. This is not about making concessions on citizens' rights. This is not about making concessions on the peace process or stability on the island of Ireland. Nor is it about making concessions on the thousands of investment projects which are financed by EU policy and the EU budget.
There's nothing new here, but it does serve to illustrate once again how wrong HMG's approach to the negotiations has been, treating them as bargaining sessions as if in a souk. This was not the way to do business.

What was especially interesting, though, was Barnier's decision in his speech to focus principally on citizens' rights. The provisions of the Joint Report were spelt out, with the EU's chief negotiators pointing out that the rights of "4.5 million European citizens" living in the UK would be protected by their inclusion in the Withdrawal Agreement.

Spelt out then was the singular fact that the Agreement will take precedence over national law and its guarantees "will have direct effect, for the duration of the lifetime of the people concerned".

"There will be no ambiguity in the interpretation of the rights on either side of the Channel", Barnier added. "Current ECJ case law will be part of the Withdrawal Agreement, and future case law will apply. British courts will have to take 'due regard' of case law for the lifetimes of the citizens concerned".

Furthermore, the British authorities will create an independent authority to which European citizens can have recourse in the United Kingdom, in the same way as British citizens in the EU can have recourse to the European Commission.

But it is a measure of the lack of trust that the "colleagues" have in the UK government that they are insisting that the details of this independent authority must be included in the Withdrawal Agreement. So indeed will the administrative procedures that the UK will apply to allow EU citizens to stay in the UK. Nothing is being left to chance – or the good will of the UK government.

Barnier, however, acknowledges that neither on this issue nor on the other subjects of the orderly withdrawal "are we there yet". He thus points out that there are many details still to be resolved,some of which have yet to emerge into the public domain, such as Euratom.

We will continue the negotiations on the subjects that need more clarification, he says, deepening and negotiation: the governance of the future agreement, other subjects such as geographical indications, the issue of data.

As to Ireland, this "will form part of its own specific strand in the negotiations". "Each assuming their responsibility, we need to find specific solutions for the unique situation of the island of Ireland", he adds. The UK is not going to be allowed to roll this in with the trade negotiations. The issue will have to be settled, or we go no further.

Hinting at battles to come, Barnier talked of moving forward on defining a transition period. It will be "short and supervised during which we will maintain the full regulatory and supervisory architecture – and obviously the role of the Court of Justice – as well as European policies".

Meanwhile, on the future relationship, that is a matter for "our internal preparation". It is not open, at this stage, for the UK to take part in the discussions.

But certain things had already been decided. "I can already tell you, and I say so clearly and calmly", Barnier declared, "that there are non-negotiable points on the integrity of Single Market, the four indivisible freedoms which are the foundation of the Single Market, and the autonomy of the Union's decision-making, which the UK has decided to leave".

And never missing an opportunity to remind us of our coming status, he added: "The United Kingdom will become a third country on 29 March 2019", then asserting, "We think that a close, future partnership remains our common horizon".

To conclude, Barnier told the European Parliament, "We know where we are today; we know where we are going". Would that a UK government could be so confident. But with Dominic Grieve snapping at its heels, the very last thing our government knows is the nature of its destination – even less does it know how to get there.

Richard North 14/12/2017 link

Brexit: separation deferred

Wednesday 13 December 2017  

It was in November, after the close of the sixth round of the negotiations, when I wrote that it was going to take a miracle for the [European] Council to give the go-ahead in December for the move to phase two.

With the Council scheduled to make its pronouncement this Friday, that miracle has yet to happen and, by all accounts, it isn't going to happen. Despite Mrs May's Friday "dawn patrol" and a promise that the talks could move on, the actual outcome looks to be something very different to that which we originally anticipated.

In the beginning, of course, there was phase one and for a long time there was only phase one. As this took on a definitive shape, it followed logically that there would be a phase two. Then, as time passed, this phase two started to take on magical properties which eventually represented the height of UK aspirations.

But there was nothing ever to say that phase two was the entire game. In fact, I do not ever recall any formal definition ever being published which told us what it was. To an extent, it was always something of a moveable feast, especially as it started off dealing only with the single issue of the framework of the relationship between the UK and the EU.

It was largely the UK, however, that fixed on the assumption that this second phase would include trade talks, despite an early warning from trade commissioner Cecilia Malmstrom that there could be no negotiations on trade until the UK had left the EU and become a "third country".

As time went on, and more and more people began to understand the difficulties involved, the idea of a transitional period started to take shape, emerging in Mrs May's Florence speech as a UK proposal and formally recognised by Michel Barnier in his closing statement to the European Parliament on 3 October 2017.

By 20 October, it had taken on a more concrete form in the European Council conclusions when decided to allow "internal preparatory discussions" on transitional arrangements as a special concession to the UK, after the first application for a move to phase two had failed.

By then, in the minds of British politicians and much of the UK media, phase two had become a composite, comprising three parts: the framework relationship, the transition arrangements and trade talks. And, to this day, Mrs May remains convinced that a trade deal will be finalised by the time we leave, hence her insistence on calling the transition the "implementation period".

Despite contra-indications from innumerable sources, Mrs May and her Brexit team have convinced themselves that trade is on the agenda for phase two, with a firm expectation that the three issues would be handled simultaneously. Then we got the Joint Report, which more or less reaffirmed that assumption.

However, the signs of reality re-asserting itself started creeping in with the draft guidelines for this now legendary phase. Brutally, it defined phase two only in terms of transition and the framework for the future relationship. Trade is hardly mentioned.  

And as if this minimalist approach is not bad enough (for the UK team), it now seems as if David Davis's weekend interventions on the binding nature (not) of the Joint Report has had a damaging effect on UK aspirations. At the general affairs council in Luxembourg yesterday, which was to approve the draft guidelines, we see reports that the ministers have toughened their stance.

Rather than allow talks on transition and the framework, they have decided to knock back the timing on the framework discussions, leaving it until March before any talks can begin. This was, in any event, hinted at in the Commission Communication, with only preparations being made for EU negotiating guidelines on the transitional arrangements, but it has now been firmed up.

The joint report, however, makes a number of references to the need for further discussions and agreements on the phase one issues. These have not been resolved. The notional phase two talks are being allowed on the basis of "sufficient progress" rather then full agreement on the phase one issues.

Taking the cue from Mrs May's report to Parliament on her interventions – and the draft guidelines - there is still considerable ground to cover and a long way to go before the Irish border question can be resolved – if at all – with some tidying up to do on the citizens' rights and the financial settlement.

A substantial part of this next phase of the talks, therefore, is still going to be devoted to phase one issues and, of the three areas of discussion pencilled-in (by the UK) for phase two, only one of those has survived the cut.

On that basis, it can hardly be argued that we are moving to phase two at all – certainly not in terms of meeting UK expectations. With so much cut, and so much of phase one remaining to be settled, it would be more accurate to call this next stage, "phase two-minus" or, if you prefer, "phase one-plus" – the "plus" being the transition talks.

Now, given the almost euphoric treatment of Mrs May's intervention by her parliamentary party, it is clear that the EU's proposed terms for the transition have not registered yet. To repeat them from the draft guidelines, the EU is saying:
In order to ensure a level playing field based on the same rules applying throughout the Single Market, changes to the acquis adopted by EU institutions and bodies will have to apply both in the United Kingdom and the EU. All existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply. As the United Kingdom will remain a member of the Customs Union and the Single Market (with all four freedoms) during the transition, it will have to continue to apply and collect EU customs tariffs and ensure all EU checks are being performed on the border vis-à-vis other third countries.
If the UK is prepared to accept these terms unchanged, then it buys two years of continued frictionless trading, albeit at huge cost. But, even though we are not yet seeing a political reaction in the UK, I remain of the view that we are headed for a major spat with the EU. I just cannot see that these terms will be acceptable.

Given the amount of time taken to negotiate but not settle the three phase one issues, and given the complexity of a full-blown transitional agreement, it seems unlikely that all the phase one-plus issues can be resolved by March of next year. At the present rate of progress, getting an agreement by the October looks more than a little optimistic.

Furthermore, we are seeing statements from Brussels to the effect that: "Negotiations in the second phase can only progress as long as all commitments undertaken during the first phase are respected in full and translated faithfully in legal terms as quickly as possible". This phrasing, apparently, is to be included in the European Council conclusions on Friday, after being spelled out by Barnier after the general affairs council.

Since Mrs May's offerings for the Irish question are, to say the very least, delusional, a significant hurdle looms, in trying to give legal precision to her fantasy solutions. Therefore, we can see the supposed phase two negotiations being dominated entirely by phase one issues.

When the European Council convenes on Friday to consider Brexit matters, it may well have to ask itself not whether there has been "sufficient progress" in the negotiations so far, but whether there has been any progress at all in the area that matters – the make-or-break issue of the Irish border.

Taking everything in hand, one must then conclude that, if the talks do continue, there will then be time enough only for settling the transitional arrangements and setting out the framework for a new relationship only in the very broadest of terms.

As to trade talks, there is "no possibility" that Britain and the European Union can conclude a free trade agreement by the time Britain leaves in March 2019, says Michel Barnier

Asked about David Davis's claim that a future trade treaty could be signed on 30 March 2019, Barnier said he expected the EU and UK to sign "a political declaration" on the future relationship. "But it cannot be anything else. In technical, legal terms it simply is not possible to do anything else. And David Davis knows that full well", he added. 

Brexit day, therefore, will most likely be Brexit deferred, with the parties only then setting out on the long and tortuous path to a trade agreement, with many years of negotiation in prospect. Not just a trade deal but even full separation by the end of March 2019 looks increasingly unlikely, with talks set to become a running sore.

Richard North 13/12/2017 link

Brexit: dereliction of duty

Tuesday 12 December 2017  

Something very strange happened yesterday. Theresa May, prime minister of the United Kingdom for the time being, stood in the Commons to give a statement on the outcome of Friday's Brexit negotiations. She delivered a litany of nonsense, one impossible scenario after another. Her own party loved her for it. The opposition, confused and ill-prepared, failed to make an impact. Mrs May lived to see another day.

In a sane political system, where MPs knew what they were talking about and we had an opposition worthy of its name, she would have been shredded. Her statement would have been challenged, dissected and torn apart, its author humiliated. But we don't have a sane system and for a leader of the opposition we have Jeremy Corbyn. And that's why Mrs May lived to see another day.

As always, the key issue was the Irish question, with Mrs May holding forth about the joint report reaffirming her government's "guarantee that there will be no hard border between Northern Ireland and Ireland". And with this came an expression of her "determination to uphold the constitutional and economic integrity of the whole United Kingdom".

This, Mrs May said, she had reinforced further by making six principled commitments to Northern Ireland. The first was to "uphold and support Northern Ireland's status as an integral part of the United Kingdom, consistent with the principle of consent".

The second was to "fully protect and maintain Northern Ireland's position within the single market of the United Kingdom". Third, there were to be "no new borders within the United Kingdom". Thus, in addition to there being no hard border between Northern Ireland and Ireland, the government would maintain the common travel area throughout these islands.

Fourthly, the whole of the United Kingdom, including Northern Ireland, would leave the EU customs union and the EU single market. Fifthly, the government would "uphold the commitments and safeguards set out in the Belfast agreement regarding north-south co-operation". Sixth, the whole of the United Kingdom, including Northern Ireland, would no longer be subject to the jurisdiction of the European Court of Justice.

The trouble is that all of this sounds so eminently reasonable, especially when trotted out in the brisk, managerial tones of the Prime Minister. But it holds together only if no one asks for details of the essential requirements for the guarantee of no hard border, alongside protecting and maintain Northern Ireland's position within the single market of the United Kingdom. And, of course, no one asked.

Instead, the assembled MPs allowed Mrs May to list three quite improbable scenarios, any one of which might be supposed to deliver her new nirvana. Initially, she said, "our intention, is to deliver against these commitments through the new deep and special partnership that we will build with the European Union".

"Should this not prove possible", Mrs May told the House, "we have also been clear that we will seek specific solutions to address the unique circumstances of the island of Ireland".

And then, "because we recognise the concerns felt on either side of the border, and we want to guarantee that we will honour the commitments we have made", said May, "we have also agreed one further fall-back option of last resort":
If we cannot find specific solutions, the UK will maintain full alignment with those rules of the internal market and the customs union that, now or in the future, support north-south co-operation, economic co-operation across the island of Ireland and the protection of the Belfast agreement.
Stepping back slightly, we have to remind ourselves that each or any of these three layered options are intended to "guarantee that there will be no hard border between Northern Ireland and Ireland". And with that in mind – bearing in mind that, at present, this comes with the Single Market – how does anyone think a mere free trade agreement, even in the form of a "deep and special partnership", is going to deliver that?

Interestingly, not one of the many questioning MPs thought to address that issue. All it would have needed was somebody to ask, "how does a deep and special partnership guarantee no hard border". But there was no answer to that question, because there was no question.

As to the first fall back, that too cried out for a question to the prime minister: "What might be the 'specific solutions' you will seek to address the unique circumstances of the island of Ireland?" But again, question there was none. Predictably, therefore, answer there was none.

That left the second fall back, where the UK would maintain "full alignment" "with those rules of the internal market and the customs union that, now or in the future, support north-south co-operation, economic co-operation across the island of Ireland".

Helpfully, there were a number of questions about "full alignment", not least from Jeremy Corbyn and from Labour's Chris Leslie, who wanted to know if it was a "meaningless concept". In response, the Prime Minister happily reiterated what David Davis had told us the previous day on the Marr show.

"Full alignment", she said, "means that we will be achieving the same objectives. I set out in my Florence speech that there are a number of ways in which we can approach this. There will be some areas where we want to achieve the same objectives by the same means".

What is important here, though, is what, in the view of the Prime Minister the term doesn't mean. And specifically, we can take it that it emphatically does not mean harmonisation of standards. "In any trade agreement", Mrs May later said:
there is an agreement about the rules, regulations and standards on which both sides will operate, but also an agreement about what happens when one side wants to diverge from them. The important point is that this Parliament will be the body deciding those rules and regulations.
From there, we really cannot go much further. Anyone with the slightest knowledge of the basics pertaining to the Single Market – which seems to exclude most MPs – will know that the free movement of goods and services arises out of the programme of harmonising laws throughout the Union.

Those whose memories go back to the late 80s and the early 90s will recall the great upsurge of EU law that came with the "completion of the Single Market", where between 1986 and 1992, more than 280 pieces of harmonising legislation was adopted in order to enable the abolition of internal borders.

If then, the essential requirement for invisible borders is the harmonisation of laws, how can Mrs May suggest that the EU will permit such a border between the Republic and Northern Ireland, without maintaining legislative (and system) harmonisation? This would have been such an easy question to ask.

In fact, someone did get close, none other than Ed Miliband. He noted that the Prime Minister had seemingly confirmed that we would have full regulatory autonomy after we leave the European Union. "Will she explain", Miliband thus asked: "how that is compatible with regulatory alignment between Northern Ireland and the Republic of Ireland and no hard border?"

Needless to say, Mrs May didn't directly answer the question. Decisions about the future rules and regulations on which this country operates will be made by this Parliament, she said, adding that "we will avoid, and guarantee that we will not have, a hard border between Northern Ireland and Ireland". She then said:
In any trade agreement, a decision will be taken as to those rules and regulations on which we wish to operate on the same basis, those areas where we have the same objectives but will operate on a different basis, and those areas that are irrelevant to the issue of the trade agreement.
It was then down to Labour's Ian Murray, who put to Mrs May that she had reaffirmed that the UK will leave the single market and the customs union and the Government "will fully protect and maintain Northern Ireland's position within the single market of the United Kingdom". Yet, she says – observed Murray – there will be no "hard border" and [no] "regulatory harmonisation".

On that basis, it was entirely fair for Murray to ask: "Are not those three statements contradictory?" For his troubles, he got a one word response: "No", a reply some might have thought contemptuous. It certainly did not address the issues.

That, though, seems to be the trademark of this prime minister. Throughout the Brexit negotiations, she has relied on generalisations and vague promises, never supplementing them with detail or being "clear" (Mrs May's favourite word) about how she would implement them.

Largely – and with very few exceptions – most Tory MPs seemed content to accept Mrs May's assurances. But from all MPs, across the party divides, there was little attempt to force from her the essential details as to how she aims to honour her pledges. When, as in the "no hard border" pledge, it is evident that the Prime Minister cannot deliver, the failure to press the point amounts to a dereliction of duty.

Richard North 12/12/2017 link

Brexit: a phony deal

Monday 11 December 2017  

With excruciating slowness, the media is gradually getting the message – the "bad Friday" agreement is a crock – a phony deal. In the lead is Tony Connolly of the Irish broadcaster RTÉ, perhaps the only journalist around making a serious attempt to understand the vital technical issues.

And it is on the technical issues that Mrs May's "deal" hangs or falls – phrases like "full alignment", one which happens to form one of the crucial elements. And it was on this which Andrew Marr questioned Brexit Secretary David Davis on his chat show yesterday.

Trying to pin Davis down, of course, is something of an art form. In response to the direct question, "What does full alignment mean?", the Brexit Secretary digressed somewhat by referring to an exchange moments earlier about "no divergence".

This, he explained, "would have meant actually taking cut and paste rules" – effectively the harmonisation which is required for participation in the Single Market and anything approaching a "frictionless" border between the UK and EU Member States.

Before then moving on to answer the question, Davis kindly told us that "full alignment" only applied to "about four" important areas, "agriculture, road and rail", to which Marr added "health, tourism, transport".

Thus did he confirm the Irish times piece from Friday, which declared: "UK qualifies implications of 'full alignment' Brexit pledge", retailing an affirmation from the Mrs May's government that "we are leaving the customs union and the single market in March 2019".

Actually, the Irish Times had six heads: transport, agriculture, education, health, environment and tourism, of which "environment" – in EU terms, is a pretty hefty thing for Davis to leave out. But, nevertheless, the point stands that the UK has no intention of addressing anything like the full Single Market acquis, omitting such interesting things like car manufacture, chemicals and pharmaceuticals – to say nothing of aviation.

Even within the sectors covered, however, the application is limited. When Marr asked "in very, very simple terms", whether the EU's carrots and our carrots "will be broadly speaking the same carrots", Davis responded with "not necessarily".

The regulations, Davis said, "will be very similar" but the key parameter is "outcomes". As the Prime Minister had laid out in her Florence speech, "there are areas where we will want similar outcomes and we'll have similar methods to achieve them". Thus, said Davis, "we will meet the outcomes, we'll meet the outcomes but not do it by just copying or doing what the European Union does".

Expanding on this, Davis then asserted "there will be areas where we'll have similar outcomes, we'll have different methods to achieve them, that’s going to be true of a lot of product areas, a lot of manufacturing and so on and there will be areas where we want different outcomes and will use different methods".

As to maintaining EU regulations, "That's not what we're going to do", he declared, with a degree of finality. "We're going to bring back control. That's the phrase used and the House of Commons will decide".

As for the deal overall, to detach us further from the idea that Mrs May's government was taking things seriously, Davis blandly informed Marr that the deal "was a statement of intent more than anything else. It was much more a statement of intent than it was a legally enforceable thing".

And thereby, did he confirm precisely what I had said in my Saturday, "nothing bankable" blogpost. There are no commitments here, and there is no intent to maintain the Single Market acquis.

On this basis, the "guarantee of avoiding a hard border" is not a guarantee at all. It is a statement of intent and, without that necessary commitment to the Single Market, is undeliverable. As I noted earlier, in order to avoid a "hard border", Northern Ireland itself must adopt the full Single Market, etc., acquis - as must the UK unless there is a "wet" border in the Irish Sea.

Since Mr Davis is candidly admitting that these conditions are not going to be met, neither the Council nor the European Parliament can approve any arrangements that allows for frictionless trading. A "hard border", on the basis of what the Brexit Secretary has told Marr is a certainty.

If it wasn't the Marr Show that spilled the beans, though, there is always the Sunday Telegraph (no paywall), which retailed a claims that Theresa May's aides told Foreign Secretary Johnson and Michael Gove that "the key concession used to seal Friday's deal with Europe" – i.e., "full alignment" - was "meaningless" and "not binding". It did not, they were told, "mean anything in EU law".

Despite, therefore, Davis asserting that "the odds, as it were, against a WTO or no deal outcome have dropped dramatically", it seems more likely that we have drastically increased the likelihood of the talks collapsing, with an accidental "hard Brexit" the necessary consequence.

It cannot be the case that the negotiations can run their course, only for it to be discovered that the prospects for an invisible border have evaporated, and that there will be no political consequences. One can expect a rebellion in the Commons, with a very real possibility that the May government falls.

However, there are developments afoot which could conspire to make this the least of Mrs May's problems. Courtesy of, we have had early sight of the negotiating guidelines which Donald Tusk intends to put to the European Council on Friday.

What will immediately create waves is that their scope is "disappointingly narrow", dealing only with the transitional arrangements. On the future trade deal, the guidelines note:
While an agreement on a future relationship can only be finalised and concluded once the United Kingdom has become a third country, the Union will be ready to engage in preliminary and preparatory discussions with the aim of identifying an overall understanding of the framework for the future relationship. Such an understanding, which will require additional European Council guidelines, should be elaborated in a political declaration accompanying the Withdrawal Agreement.
This kills stone dead any idea that we will see any form of trade agreement in place by the time we leave, leaving the UK entirely reliant on reaching an agreement on transitional arrangements to tide us over, while a trade deal is negotiated. But here – although entirely expected – the terms offered are seriously bad news. The guidelines state:
As regards transition, the European Council notes the proposal put forward by the United Kingdom for a transition period of around two years, and agrees to negotiate a transition period covering the whole of the EU acquis, while the United Kingdom, as a third country, will no longer participate in or nominate or elect members of the EU institutions.
They go on:
Such transitional arrangements, which will be part of the Withdrawal Agreement, must be in the interest of the Union, clearly defined and limited in time. In order to ensure a level playing field based on the same rules applying throughout the Single Market, changes to the acquis adopted by EU institutions and bodies will have to apply both in the United Kingdom and the EU. All existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply. As the United Kingdom will remain a member of the Customs Union and the Single Market (with all four freedoms) during the transition, it will have to continue to apply and collect EU customs tariffs and ensure all EU checks are being performed on the border vis-à-vis other third countries.
What the EU is demanding is that the UK remains effectively a full member of the EU as regard the obligations, subordinate to the ECJ and Commission rulings, but without any representation in the European Council, the Council of Ministers or the European Parliament – and with no UK Commissioner. And, since the "budgetary instruments" still apply, we'll still be paying the full UK contribution.

By any measure, this is the worst of all possible worlds, the full application of "pay – no say" which the Efta/EEA option was supposed to saddle us with, in one of those falsehoods that dominated the referendum campaign.

But, having ruled out that option – where we would have had significant input in the creation of new law, and would be paying only a fraction of the contributions – and then not into the EU budget – Mrs May is confronted with the idea that we have to obey all the 20,000 laws of the acquis, and not just the 5,000 or so of the EEA acquis, most of which are technical standards which we would implement anyway.

The effect of these arrangements would, without doubt, serve to delay our withdrawal from the EU by a further two. The crisis on the border would be deferred, and trade with the EU could continue, but at the price of a Brexit in name only.

This completely negates Mrs May's pledge that "we are leaving the customs union and the single market in March 2019", and makes a mockery of any aspirations of being an independent nation, moving the timeline to March 2021 – nearly five years since the referendum.

It seems inconceivable that Mrs May or her Cabinet could find this acceptable and the Tory "Ultras" could not conceivably accept these terms at all. This is a recipe for civil war within the Tories, with the odds very high for the UK falling out of the EU in an accidental Brexit, effectively the hard Brexit by default.

On a technical note, I don't see how the transitional arrangements can be part of the Withdrawal Agreement. Under Art 50, once the Withdrawal Agreement takes effect, the treaties cease to apply to the UK. To make them re-apply needs a new treaty. That, as a detail, may come to the fore, adding further to the complications.

That apart, by the end of next week, we can see Mrs May's famous "breakthrough" being ripped apart. The drama of last Friday will be long forgotten as we are precipitated into the mother of all crises, spelling the end of Mrs May's inglorious attempts to engineer a rational Brexit.

At the very least, her stupidity in rejecting the Efta/EEA option has confronted us with a situation far, far worse, while prolonging the Brexit agony for another two years. And when those two years are over, all the problems attendant on the UK becoming a third country will re-emerge.

For the moment though, we have the bizarre situation where the Irish media are providing better coverage of the issues that the UK equivalents, with the Irish Times telling us that EU Brexit negotiators have expressed doubts about the feasibility of the UK's pledge to avoid a hard Border in Ireland after Brexit.

European Commission officials, we are told, are saying the UK's determination to leave the single market and the customs union "seems hard to reconcile" with its promise to avoid a hard Border in Ireland. 

That may well go down as the understatement of the century, but it does give some hint of the storm to come as the "bad Friday agreement" begins to unravel. Then, as Mr Blair never said, things can only get worse.

Richard North 11/12/2017 link

Brexit: reality on hold

Sunday 10 December 2017  

Reviewing the recent responses to the "Friday deal", it is quite evident that the media and the bulk of the pundits have been taken in by the theatre. The result is that there is scarcely anything in the media worth reading or listening to that hasn't either missed the point or got it plain wrong.

Nor does one have to be an out-and-out cynic to suggest that, when it comes to politicians, we should watch their hands, not their lips. Simply a little healthy scepticism is all one need ask for.

As regards the theatre, the dawn press conference after a night of make-or-break negotiations is such a cliché that one is surprised that the actors didn't get a slow handclap from the hastily assembled audience.

Where we need to be looking her, of course, is the small print. But, after several readings of the Joint Report, one can only conclude that the authors must have been using hallucinogenic drugs.

Anything of this nature that lacks essential coherence and so challenges reality cannot possibly succeed as a negotiating draft. The very lack of coherence and the inbuilt contradictions will serve to drag it down. New crises are simply a matter of timing.

In fact, the crucial document is not the Joint Report but the Commission communication. This sets out in detail the immediate negotiating parameters, pending the Council guidelines.

Next week we will see the EU's negotiating guidelines proper. Then we will begin to see the mountain facing us, and how little we have actually progressed. And it is at this point, we will realise that the UK government is not even close to a deal.

If, as expected, the focus of the next round of talks is on the transition period, then the first crisis will not be long in coming. The terms the EU is dictating amount to full conformity with the entire EU acquis - including new laws that take effect - and subordination to the ECJ.

This, in effect, will mean an extension of UK membership for the period, but without the representation . It will be the worst of all possible worlds – "pay, no say" with a vengeance. At the end of the period, we will be no further forward for having kicked the can down the road.

All the old problems attendant on our leaving the Single Market will still be there waiting for us, and the EU will have little incentive to do anything other than offer an extension.

For the moment, though, we have to go through the tedious charade of self-congratulation and misdirection, while almost everyone ignores the obvious – the crucial issue highlighted by Booker in today's column (no paywall). Simply, he says, it was in no one's interests, and especially not the EU's interest, that the talks should collapse, not least because no one on either side is yet remotely prepared for what will eventually happen when the UK leaves the Single Market.

And, when push comes to shove, it was all very well for Theresa May to say there will be no "hard border" in Ireland. But how telling, Booker adds, that she gave no hint as to how this miracle could be achieved. What we saw on Friday, therefore, was Mrs May not just them "kicking the can down the road, but the whole cannery".

And, for all that, we are still left with precisely those same problems which became inevitable when Mrs May announced in January that we were to leave not just the Single Market but also the European Economic Area (EEA). Remaining in the EEA was always the only practical way in which we could have left the EU but preserved those "frictionless" borders she said she wanted.

How telling that also on Friday morning we read of the MPs in the Public Accounts Committee slamming our "reckless" Government for its "wishful thinking" in failing to have made any proper preparations, at Dover or anywhere else, for some of the immense practical problems which will arise when border controls have to be erected on both sides of the Channel.

But for the dawn theatricals in Brussels, we might have seen the media make more of the report, especially as its findings indicated that at least some MPs (pace the PAC) are beginning to appreciate the extent of the disaster awaiting us.

Government departments, the PAC said, are assuming that the risks to managing the border will not change immediately when the UK leaves the EU, and that border checks will therefore be the same after March 2019 as they were before.

They are therefore not planning for any major new physical infrastructure at the border by March 2019, and do not expect all new or updated IT systems to be ready by that date. Departments say they are planning for a no-deal scenario, but do not expect there to be many changes whatever the position in March 2019.

The Committee went on to say that they were very concerned that the Government's assumptions are risky and do not allow for changes in behaviours by companies trading across the border or people crossing it. Particularly, it says, in the event of a no-deal scenario, the border could be exposed to risks on day one of the UK’s departure.

Officials, we were told, are relying too much on there being a transitional period in order to have the time to develop the new systems and infrastructure that may be required. The current negotiations bring significant uncertainty, but the new Border Planning Group (the Group) and government departments need to step up and be prepared for the possibility of a no-deal scenario and for the costs of all potential options.

It is worrying, the PAC then concluded, that we were told that the Group could not plan for any challenges around the Irish border and the 300 crossing points, as it needed the political process to go further before it could fully understand the issue.

This being the case, all that happened on Friday was that both sides bought extra time to prepare for the massive disruptions to trade which Mrs May's decision to leave the EEA has still in due course made unavoidable.

What is particularly weird about this, says Booker, is that we have never been given any proper explanation for that decision. We were told that remaining in the EEA would have been tantamount to remaining in the EU, when in fact it would have freed us from 15,000 of the EU's 20,000 laws, only having to obey the 5,000 relating to trade.

Yes, by wonderful irony, that is precisely what we are intending to do anyway, under less advantageous terms than would have been available. This rather makes every objection we were offered to our remaining in the EEA a caricature of the truth, clearly originating from those who had never looked intelligently or honestly at the evidence.

Instead of which we are left still chasing nothing more than that chimera of a fondly imagined but wholly undefined trade deal, which can only in some form or other give us "hard borders" and damagingly less access to our largest single export market than we have now.

And all this arose, says Booker, because Mrs May and her advisers never did their homework properly, or had any idea just what terrifyingly intractable problems this would be landing us with. If only all this could have been openly debated in that desperately trivialised referendum campaign we might not be where we are now.

The trouble is, though, we are where we are. There's little that can be done in this system to overcome high-level ignorance where issues of huge importance are decided by tiny cabals, isolated from the real world and therefore remote from the normal human interchanges which inform lesser mortals.

Interestingly, I have been reading the autobiography of Albert Speer, Hitler's architect and latterly his minister of munitions. An early member of the Führer's inner circle, he observed that the higher the ranking of Party officials, the greater their isolation and the less their knowledge of ordinary events. He also noted of some in high office that "their arrogance and conceit about their own abilities is boundless".

Much of what went on at high level in Germany during the Hitler period is special to it, but some of what Speer recounts is easily identifiable as the Dunning-Kruger effect. This is a disease of government, one of timeless effect, from the Bourbons and before, to Mrs May and her kitchen cabinet.

We talk about this in more colloquial terms as the "bubble effect" but any analogy has its limitations. There is not one bubble but many, and some are multi-faceted, with bubbles inside bubbles inside more bubbles. Not one but many transparent walls can separate the inner denizens from the real world.

In one such bubble lives our Prime Minister, taking advice and counsel from a desperately limited circle, otherwise cut off from the rest of humanity. And when those people are imbued with boundless "arrogance and conceit about their own abilities" (as is all too evident with Nick Timothy, just from the evidence of his Telegraph column), there is nothing they can learn and nothing they can be told.

The essence of the "bubble" though, is that it filters the flow of information, so that ordinary and obvious things never penetrate and low-ranking or despised sources are easily eliminated.

The media, of course, has its own bubbles, so constructed as to have filters which allow the passage of information to those in power, and between themselves, but never from those who would disturb their primary industry – the process of creating narratives. Thus the system is custom-made to foster and disseminate error.

It is unsurprising, therefore, that our leaders get things wrong and even less so that the media so often projects a joint narrative which completely misrepresents reality.

In these dark days, when so much is at stake and there is so little clarity, perhaps the only thing that will break through the multiple tiers of bubbles is the real world test of whether things keep working. To that effect, the PAC report offered rare insight – even if it was less than complete. How ironic it was that its message, issued on the same day as Mrs May's theatre, was drowned out by it.

However, facts don't go away because they are ignored, any more than does reality. Soon enough, they reassert themselves – largely because they must. Sadly, their arrival is often accompanied by turmoil and pain.

That, it seems, is the destination for Brexit. The noise level is far too high for any rational argument to survive, and is set to get higher. But, while the perpetual fudge can stave off the effects of reality for a long, long time, eventually it comes. Reality may be on hold, but it will arrive.

Richard North 10/12/2017 link

Brexit: nothing bankable

Saturday 9 December 2017  

Ostensibly committing the UK to a "soft" Brexit, the Joint Report from the EU and UK negotiators, published yesterday, actually does no such thing.

As the accompanying (but less read) Communication makes clear, "the Joint Report is not the Withdrawal Agreement". And in that one terse sentence on the first full page of the document is set the essence of Friday's dramatic "breakthrough". The "dawn patrol of Mrs May and Jean-Claude Junker shaking hands on a "deal" that takes us into phase two of the Brexit negotiations may be good theatre, but that is about all it is.

In the Communication, we are reminded that, only if the European Council considers that sufficient progress has been made in those negotiations will it instruct the European Commission to draw up a proposal for a Withdrawal Agreement. This will be "based on Article 50 of the Treaty on European Union" and will be drafted only "on the basis" of the Joint Report as well as "the outcome of the negotiations on other withdrawal issues".

The only commitment in relation to Friday's deal, therefore, is that the final Article 50 agreement will be drafted "on the basis" of it and the outcome of the subsequent negotiations. There is nothing in the Joint Report which constitutes a formal treaty or any legally enforceable commitment.

In fact, as the Joint Report takes pains to point out, "nothing is agreed until everything is agreed", a caveat that over-rides its apparent requirement that the Joint Report shall be "reflected" in the Withdrawal Agreement "in full detail".

In any event, any supposed "commitments" do not, "prejudge any adaptations that might be appropriate in case transitional arrangements were to be agreed in the second phase of the negotiations". Furthermore, they are "without prejudice to discussions on the framework of the future relationship".

Returning thus to the Communication, we find that the Withdrawal Agreement "will be concluded by the Council upon a proposal from the Commission" – on the basis of QMV – but only after "obtaining consent of the European Parliament". And, of course, it is "subject to approval by the United Kingdom in accordance with its own procedures".

Were it the case, however, that the parties sought to make the Friday (but not the Good Friday) deal enforceable, those attempts would fall foul of the simple premise in law that requires any "commitments" to be reasonably capable of execution. And, where we find the core element in the "Ireland and Northern Ireland" section (paras 42-56), there is a lack of coherence which amount to self-contradiction.

The heart of the section is set out in paras 49-50, the first of the pair asserting that the UK "remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border". Any future arrangements, it says, "must be compatible with these overarching requirements".

As a binding commitment, that immediately falls apart as its execution is subject, inter alia, to the approval of the European Council, the European Parliament and the UK "in accordance with its own procedures" – and can be swept aside by any agreements made in discussions relating to the framework of the future relationship.

Moving on, we are told that the UK's intention is to achieve these objectives "through the overall EU-UK relationship". But, unless the UK embraces measures equivalent to the adoption of the full range of Single Market rules, that cannot happen. And since this has already been ruled out by Mrs May, it isn't going to happen.

Effectively recognising that, para 49 goes on to say that: "Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland". But that brings us back into DUP territory, where no agreement is politically tenable. This option is also a non-starter.

What the Joint Report amounts to then is the latter part of para 49, which offers the fallback "in the absence of agreed solutions". Then, the UK "will 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".

This is generally taken as a commitment by the UK to adopt the Single Market and Customs Union provisions – especially as the reference is to "full alignment" - thereby banishing the prospect of a "hard" Brexit. The Republic of Ireland is thus being lauded for its actions in "rescuing" the UK.

In the event of this happening, though, we have to add para 50, where the UK "will ensure that no new regulatory barriers develop" between Northern Ireland and the rest of the UK, unless "consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland".

In all circumstances, however, the UK "will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market".

What this then amounts to is giving the power to the Northern Ireland Executive and Assembly to require the entire UK to maintain "full alignment" with the "rules of the Internal Market and the Customs Union" unless they decide to go their own separate way.

This, on the face of it, looks to be exactly what it is – absurd. The tiny Northern Ireland "tail" is wagging the huge UK "dog", forcing Mrs May to abandon her own party commitment to leaving the Single Market and the Customs Union. But, as we later learn – courtesy of the Irish Times - this is not to be.

Rather, as confirmed by a senior official at the Department for Brexit, the commitment to maintain full alignment with the "rules of the internal market and the customs union" applies only to the six areas of North-South economic co-operation identified in the Belfast Agreement. These are transport, agriculture, education, health, environment and tourism.

The official says that 142 cross-border policy areas identified by the Barnier task force were subsets of the original six, and insisted that the commitment did not undermine Britain's declaration that it would leave the single market and the customs union.

"It's the six areas. The 142 are a deeper dive across those six areas. The ambition at the moment clearly is to get cross-border trading arrangements to maintain the status quo as much as we can", the official says, adding: "There are a very unique set of circumstances that apply to Ireland that don’t apply to anywhere else in the UK. But in terms of customs union and single market membership, the UK as a whole will be leaving".

And there we confront the EU's own requirements. In order to avoid a "hard border", Northern Ireland itself must adopt the full Single Market, etc., acquis - as must the UK, unless the border moves to the Irish Sea. And since these conditions are not going to be met, neither the Council nor the European Parliament can approve them.

This alone tells us that the Joint Report is already dead in the water. It is not the basis for a serious negotiation – merely a device to keep the talks moving and to allow Mrs May to claim a much-needed "victory" in order to keep her in office a little while longer.

When Donald Tusk expresses his concerns that Downing Street "was not aware of how difficult the coming negotiations would be", he is only stating the obvious.

Mrs May has not so much kicked the can down the road as the whole cannery. But it is still there, looming on the horizon, ready to dominate phase two. In so doing, the parties have set themselves up for a fall – apparent commitments that aren't actually commitments and which cannot be implemented.

The only face-saver is the agreement to discuss the transition period, but even then the Tory "Ultras" aren't going to like what they see – full adoption of the EU acquis, subject to the jurisdiction of the ECJ without any representation. This is the worst of all possible worlds.

Then, given the chaotic nature of the Joint Report, that is the least of our problems. We have not escaped a "hard Brexit" – we have made it more or less a certainty. Even collapse is still a possibility, which makes transition academic. On present form, we'll be long gone before it can take effect.

Richard North 09/12/2017 link

Brexit: impact assessments

Friday 8 December 2017  

Given the spectacular failure of David Davis to deliver credible (or any) impact assessments, I've been asked to produce a list of sites which offer information on the impacts of Brexit. 

This comes after the publication of a House of Lords Report on the impact of a hard or "no deal" Brexit, trailed by the Guardian on the day of publication.

Without further ado, therefore, I have compiled with the assistance of readers, a list of links to relevant sites, which I append below. I will ask Pete to put up a link on the menu toolbar (above) and then add to and refine the list, to provide an ongoing resource.

If the pic looks familiar, it's one I used here, dealing with customs and related issues. Anyway, here is the list (most, but not all from EU Ref):

1. Aerospace industry and here
2. Airlines and here;
3. Airlines: Third Country Operators;
4. Air Traffic Management;
5. Animal Exports;
6. Automotive industry;
7. Bloodstock Sports (Horseracing);
8. British Standards Institute (CENELEC etc);
9. CETA and EU exports;
10. Chemicals (REACH) and here;
11. Cosmetics;
12. Customs systems;
13. Damage Assessment (Adding it up);
14. Digital Market;
15. Driving Licenses, etc ;
16. Euratom (Pete North);
17. Financial contributions (Monograph 3);
18. Financial Services (Monograph 14) and Select Committee Report;
19. Fishing;
20. Food exports;
21. Formula 1 (Racing cars) ;
22. Geographical Indications;
23. Hazardous Area Equipment;
24. Medical Isotopes;
25. Maritime Surveillance;
26. Meat Industry;
27. Passenger Lifts;
28. Passport Union;
29. Pharmaceuticals Industries (Medicines);
30. Pharmaceutical Ingredients;
31. Port Operations and here;
32. Third Country Status;
33. Timber and related products;
34. Trade cooperation;

and also …

35. European Parliament Impact Studies.

Any suggestions for further entries would be appreciated.

Richard North 08/12/2017 link

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