Brexit: the Brexit victims

Tuesday 27 June 2017  

The Prime Minister made a statement in the House. It was followed by a Government press release announcing formal proposal in the form of a White Paper on "Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU". For citizens of EU Member States, there is then an explanatory booklet.

Putting all this prodigious effort together, it seems the Government has really gone the extra mile in the communication stakes. Yet, it seems, more than a million foreign workers are preparing to leave the UK within five years, and the Independent thinks it's a "sinister deal".

As for me, I neither know nor care. When I look at the details, my eyes blur. But then, neither I nor anyone else in the UK matters. The test will be how the EU negotiators respond. If they buy into it, then we've made progress. If they make it a sticking point, we could be wasting many months while we attempt to reach a common position.

Whatever else, this is not precisely what the Commission wants. It was looking for the rights of all expats to be preserved in full – which isn't going to happen. And it wanted any deal to come under the jurisdiction of the ECJ. And that isn't going to happen. Thus, at a very early date, we're going to see the colour of the Commission's eyes. And either the "colleagues" are going to back down, or we are. I'll let you guess who.

As it stands, citizens from EU Member States are going to have to go through a shed-load of bureaucracy to get to keep their places in the rain, and there is plenty of scope for anomalies and any amount of bureaucratic cock-ups – enough to give the Guardian and its fellow travellers a prolific new source of copy. In fact, we could be in on the creation of a whole now genre of journalism: the "Brexit victims".

Already, this champion of everybody's rights (unless you're a white, Anglo-Saxon male who isn't called Jeremy Corbyn) is talking about a "sour taste", while Barnier is calling for "more ambition".

Meanwhile, Mrs May has bought off the mad Ulstermen (and women) with a £1 billion bribe – which, I suppose, is better than giving it to the "colleagues". Together with the growing number of high-rise blocks which have their cladding fail the fire test, this is keeping the legacy media busy. Citizens' wrongs look to be a slow burn.

But then, forest fires burn harder during the late summer which, perversely, may be just what we need. Over the water, in Ireland, RTÉ's flagship current affairs programmes are finding Brexit coverage a problem as it is considered boring and a "turn-off" for viewers.

This is according to David Nally, managing editor. News bulletins are ratings-sensitive and, while some of the state broadcaster's current affairs coverage competes well with football or entertainment shows on other channels, staff are finding that Brexit is an audience "turn-off".

Nally says: "You have to bear in mind that those programmes have 30 seconds at the top of the programme to persuade people to watch them. One answer as to why Brexit coverage comes over as "boring" because it is "complex and it lacks real people", but the better answer is that, over the year the issues haven't really changed.

"It is a difficulty", he adds, "to keep saying the same thing over and over to people, especially when you can't show them that it's affecting real people's lives, that it's changing, or that the big players, the big decision-makers are appearing on the programme".

Actually, I can understand the sentiment here, even if I don't agree with it. The problem with Brexit is that neither journalists nor politicians understand the underlying issues. They thus keep churning over the basics without bringing anything new or interesting to the table. There are only so many times one can listen to idiot politicians explaining how little they know about customs unions.

At least we seem to have a sort of an ally in Fionnán Sheahan, editor of the Irish Independent. He "disagrees strongly" with anybody who suggests that Brexit is a boring topic". "What happened 12 months ago was a game-changer across this country and if we're not going to cover a topic like that comprehensively and throw any and all available resources at it, then I don't know why we are in journalism", he said.

Paul O'Neill, the newly appointed editor of the Irish Times', said the paper had published around 1,000 articles on Brexit over the past year. He added: "There is interest, but it really is nothing extraordinary".

Sebastian Hamilton of the Irish Daily Mail says that journalists need to employ critical thinking around their coverage – something for which they are not exactly famous. But Ian Kehoe, editor of the Sunday Business Post said Brexit had impacted everything while affecting nothing. He said newspapers ran the risk of "Brexit fatigue" with their readers.

In a nutshell, though, Brexit isn't boring – it's the media coverage that makes it so. For most of my adult life, it has been a family ritual to have the evening meal early, while we watch the six o'clock evening news. But more and more, I find the coverage so superficial as to be irritating, while the way broadcast media these days report the news I find patronising and lightweight. Minutes in, I'm reaching for the programme changer.

This is exacerbated by the politicians who have nothing interesting to say on a subject of very great interest, driving people away through repetition of the same limited repertoire.

This issue of expat rights is a case in point. It seems to have been on the agenda forever, getting nowhere very slowly. All the substantive issues are waiting in the wings but virtually nothing is said of them, concealing a sombre truth that few politicians or journalists are capable of saying anything of any great interest about them.

As to the media attitude, there is a clue in the comment from Nally in his saying that the subject is "complex and it lacks real people". This reflects the inability of journalists to get to grips with the complexity, and their obsession with personalities.

On any one day collectively, the Discovery documentary programmes attract millions of viewers – I sometime find myself watching them instead of the news. Yet these are the very essence of issue-led broadcasting, which journalists can't seem to master. Unless their clips have "slebs" or "victims" which can be cobbled together to represent "human interest", they're all at sea.

With the expat issue now to the fore, I fear the worst. Potentially, it combines all the undesirable features of modern journalism under one cover. The media have got their "real people", who can take centre-stage as a never-ending procession of "Brexit victims". There will be no stopping them now.

Richard North 27/06/2017 link

Brexit: a year of learning

Monday 26 June 2017  

Briefly less concerned with immediate events, I've been upgrading the First Year of Brexit, adding a front cover to it, designed by a reader (pictured) and trimming forty pages from the length. If anyone who has already bought a copy and wants the upgrade, drop me an e-mail and I'll send you a copy. Otherwise, you can buy one for £4 from the link on the sidebar.

Going back through the year was extremely useful, reminding me of half-forgotten events and, in particular, illustrating how much I've learned over the year.

There is an interesting dynamic at play here, in that you tend to think you know about many things until you start to write about them. It's then that you discover how little you know, making the process of writing the blog one of the most educative processes I know. If readers have learned a great deal – and many tell me they have – I have learned a great deal as well.

Speaking with other bloggers, I find they share the learning experience which one gains from writing. In the case of, though, there is the volume effect, and the sheer relentlessness of the coverage. In the space of a year, writing over 440,000 words on one subject (before editing) with a post almost every day, linking to over 2,000 references (from newspaper cuttings to reports hundreds of pages long), covering over 1,000 A4 pages, cannot but help make its mark.

Of the previous coverage, one post I edited yesterday I had posted in early July last year, drawing attention to a paper by the Robert Schuman Foundation, which explored how the UK could stay in the Single Market.

What was particularly interesting were the observations on the EEA, where it was suggested that the UK could explore the opportunity to revise the EEA rules so that the non-EU members of the latter have a right to vote (like Norway, for example) on policies in which they participate, notably those involving the Single Market.

This, as we now know (as recorded in Monograph 9), was the original intention of Jacques Delors, which had been articulated as early as 1987 and had begun to take form as the European Economic Space (EES), with "houses" in a European "village", each with equal decision-making rights.

In this scenario, the Robert Schuman Foundation says, "the UK would continue to participate in the internal market and apply the corresponding rules", adding that it would have to contribute to the EU’s budget, "but only for certain policies" – presumably to cover things like the decentralised agencies in which we continued to participate.

Almost as a throw-away line, the Foundation also said that freedom of movement would continue to apply, "but the EEA Agreement provides safeguard mechanisms that can be activated unilaterally".

After all the pompous, self-opinionated rubbish that I've had to read, this is so refreshing. Of course the EEA Agreement provides for safeguard mechanisms, and of course they can be activated unilaterally (by Efta states). If the Robert Schuman Foundation knows this, you can bet that the Commission knows it – and has as few hang-ups as the Foundation. The measures are a treaty provision and there to be used.

But what is also especially encouraging is the thought that this type of scenario, "might eventually lead to the realignment of the Economic and Monetary Union (EMU) with the European Union". Thus, we see the "greater EU" splitting into two parts – the one as a fully-developed economic entity called the Eurozone, and the other the EEA, which would offer an institutional framework for the single market.

This is very much along the lines of Flexcit, where Brussels no longer has the exclusive right to manage the Single Market, the functioning of which becomes the shared responsibility of all its members. Says the Foundation, a modification of the EEA Agreement would therefore allow to settle several difficulties facing the EU at present, whilst providing welcome clarification for citizens, as well as economic and financial actors alike.

It adds that this type of arrangement might also offer an alternative to candidate countries, which could opt to enter the EEA rather than the EU, as was originally mooted for the former Soviet satellites. And there is no reason why we should see it limited to candidate countries. The EEA should also open its doors to the Russian Federation and to non-aligned states.

Specifically, the Foundation says that the EEA would be open to States which want to take advantage of the internal market above all, without taking part in all of the other aspects of integration. It is highly likely, it says, that the UK would be tempted to join the EEA.

With simple logic, it says that this kind of arrangement would be advantageous to the UK in that it would offer it a compromise, thereby avoiding a brutal break from the EU. Crucially, it adds, it would also provide a solution to the Scottish and Northern Irish questions.

The UK would continue to participate in the internal market and apply the corresponding rules, which it would continue to help define. Of course it would have to contribute to the EU budget but only in certain policy areas (the UK would no longer take part for example in the common agricultural policy).

Bringing us up-to-date, yesterday Brexit Secretary David Davis was on the Marr show – about the only Brexit news in an otherwise thin day. But about the only things of even marginal interest was his assertion that he was "pretty sure" there would be a deal, and that the transitional period would run from one to two years.

Neither statement is particularly encouraging. There are many levels of deal potentially on offer and there is nothing to say that Davis can bring home anything that will be needed by our businesses. And, as to the "one to two years", this is so unrealistic as to be laughable.

One must remember though that Davis has a recent history of making unrealistic statement and then altering his position later one – right up to the "summer row" that never was.

What we continue to see is a poverty of vision and a generally response-driven strategy coming out of Downing Street. But, the closer we get to the crunch, the closer we get to the reality that there is no way on God's earth we can conclude a trade agreement in the time - "impossible means impossible". We must focus on a transitional agreement.

Here, reality hits us between the eyes. Following on from the Robert Schuman Foundation, we can use the EEA acquis and seek a sensible "modification" which could overcome the worst feature of the Agreement and give us something we could live with.

Even though the end product might look very much like the EEA Agreement, there is no reason why it should keep its name. Something like a European Enterprise Zone (EEZ) might be sufficient to calm nerves, which red-white and blue "bespoke" additions could tailor it for the UK. In fact, the EEA Agreement is already a series of bespoke agreements stitched together under one treaty roof.

At a domestic level, unless she is to be bogged down in the aftermath of Grenfell Tower, Mrs May has got to take the initiative. She must storm the high ground, or be seen to be reacting to the EU's agenda. In other words, we need a plan. But it needs to be bigger than that. We need to engage the EU, and make them feel they have a dog in the fight.

Given that it has been floated by the Robert Schuman Foundation, I'm sure there would be political support in Europe for a "modified" EEA. Oddly enough, 2019 is the 25th anniversary of the EEA Agreement coming into force, so there is some logic in tying in Brexit with EEA enhancement and merging the agendas.

In a nutshell, we buy time by agreeing a transitional agreement - leading up to March 2019 when, with the "colleagues" we jointly announce (alongside Efta) the commencement of talks to build a 21st Century version of the EEA, with a target for completion (say) of 2025.

We might even call it, "Agenda 2025", and the EU could also take in reform and rationalisation of its Neighbourhood Policy, building a "positive, forward-looking" agenda. That way, we all own a slice of the action and it justifies the political investment. It is no longer just about Brexit. UK withdrawal has become a catalyst for something much bigger and better.

And isn't it just amazing what a year of learning can do.

Richard North 26/06/2017 link

Booker: Brexit shambles

Sunday 25 June 2017  

In a truncated piece (it was originally meant to be longer until the management intervened), Booker writes this week on the Brexit talks which "have proven to be a shambles from the off".

Exactly a year after the referendum, he says, our Brexit talks have finally groaned into action, prefaced at the insistence of the EU's chief negotiator Michel Barnier by discussion of the three issues which he had ruled must be resolved before there can be any talks on a trade deal.

On the first, the post-Brexit status of EU and UK citizens, despite our being told that this is going well, much still remains to be argued over, such as the role of the European Court of Justice. The second issue is the so-called "divorce bill" we have to pay for our share in all those ongoing financial commitments under the EU budget we have already signed up to as members.

This, Booker was estimating here last summer, is likely to end up at £30-40?billion. But the final figure cannot be calculated until the end of the EU’s current Multiannual Financial Framework period in 2020.

The third issue, the Northern Irish border, cannot be resolved until we have agreed the nature of our future trading arrangements with the EU. So by a Catch-22, we can't discuss trade until we've agreed about Northern Ireland, which we can't discuss until we've agreed about trade. What a shambles, he says, it is all already becoming.

That's all we get from Booker this week but it's a good topic hook on which to base a discussion on how we got to this parlous state. Anything of this nature is bound to be complex. There could never be a simple explanation of why the government has made such a mess. Incompetence alone could never be enough. There has to be more – much, much more.

What I don't think we can do is look at the current events in isolation. As much to do with why things have gone wrong (if you accept they have) is the way the Eurosceptic movement has developed and how it has influenced the Conservative Party.

Arguably, what has contributed to the shaping the current government's handling of Brexit are its perceptions (and the distortions) of what it believes the European Union to be. I don't for the life of me imagine the Mrs May and her ministers are negotiating with the EU as it exists. Rather, they are basing their actions on the cardboard cut-out pastiche of what they believe the European Union to be.

Another major contribution is the lack of preparedness, where neither this government nor its predecessor have been able to craft a credible Brexit plan, all in the context of the failure of the "information nexus" to come up with acceptable alternatives.

I remarked the other day on how, in the beginning, work on this had been relatively easy as there were generally only three recognised options. But now, barely a day goes by without some self-important luminary of body coming up with a new idea or variation of something that has already been floated – each less plausible (or more troublesome) than the last.

Those of a conspiratorial bent might even begin to suspect that this process on the part of the "remainers" is deliberate. As the complications multiply, ordinary people lose patience and, confronted with the perils of a "botched Brexit" will be willing to accept something that sounds as if it takes us out of the EU, but doesn't really.

Right up front, when we were warning that Brexit was going to be complicated, our purpose was not to suggest that it couldn't be done – of which some accused us – but to identify the problems early so that we could overcome them. I have long held that the first (and most important) step in problem-solving is to define clearly the nature of the problem. We look to raise problems in order to explore ways of dealing with them.

With that, I aver that, had the UK government held off its Article 50 notification until we had secured a commitment from the Efta states that it would accept our rejoining them, and then worked on a schedule of amendments to the EEA Agreement – to be presented to the EEA Joint Committee – we would be well on our way to securing a Brexit within the constraints of the two-year Article 50 process.

In that sense, while I've always been up-front in arguing that Brexit is difficult, I've never said it was impossible – unlike Mrs May's comprehensive free trade agreement, which resides in the land of the fayries.

As a result (and I'm not afraid to make the link), we are seeing an emboldened commentariat argue that Brexit should be reversed. With honeyed words coming out of Brussels suggesting that penalty-free reversal is possible, it may be only a matter of time before it lodges on the political agenda.

It is here that my loathing of Vote Leave cannot be suppressed. The arrogant fools who hijacked the long-standing campaign thought that they were just dealing with the mechanics of winning a referendum, seeing that as the objective rather than just a step in the right direction.

Winning, as is now becoming painfully evident, was necessary but not sufficient. Without a clear (and realistic) idea of what we wanted from Brexit, there was always a risk that we'd be all over the place in the event of a victory. There is now danger (and always has been) that we fall at the final hurdle and never actually get to leave the EU.

If there is a better word, then I'd like to see it. But it has always struck me as the ultimate in stupidity for the "Ultras" to reject the Efta/EEA option as not leaving the EU, when probably the only realistic way of ensuring that we make a clean break is to follow that path.

But where we go now is anybody's guess. With the May administration in turmoil and the prime minister's unerring clumsiness, we cannot rule out the prospect of an autumn general election and the emergence of Jeremy Corbyn as leader. It would then be difficult to argue that his Brexit team was any more incompetent than May's team, given that we have absolutely no confidence in the current team avoiding a Brexit disaster.

Much of this does has to stem from the initial incompetence of the official leave campaign, the cowardice of Arron Banks in not supporting an effective exit plan and, of course, the inept behaviour of Nigel Farage whose use-by date must have expired a decade ago.

The issue we now have to address is whether the situation is recoverable. And while I do believe that there are stratagems that we could adopt, which could deliver a favourable outcome, I do not believe there is either the competence or the political will within the May administration that could deliver.

Nor is there any confidence in a political system which is basically deaf to ordinary citizens and which consistently shows itself unable to respond to anything originating outside its own bubble. If it had had the ability to respond, then it might not be in the mess in which we find it.

The answer to the Booker conundrum, therefore – as to why Brexit talks are in such a shambles – may be simpler than we thought. It all boils down to a failure to communicate, the inability of the government and the political classes to listen and learn. But if the diagnosis is simple, the solutions are anything but.

Richard North 25/06/2017 link

Brexit: year of the blog

Saturday 24 June 2017  

It's been a year since we voted to leave the EU. And, on every day since, with just a tiny number of exceptions, we've published a blogpost on Brexit- related issues, including some guest posts from Pete.

Now, I've been working on an experiment, collating the whole output in the year since the referendum, all into one file. I've lightly edited the posts. Reformatted them and converted the html links into active footnotes. Altogether, the file runs to nearly 440,000 words in over 1,000 pages, with better than 2,200 footnotes. Altogether, topped and tailed, it becomes an e-book that's not very far short of half-a-million words.

I've converted this into a .pdf file using the latest software, which keeps the file-size to the minimum. From there, Pete has found a way of uploading the file onto a pay site, allowing us to sell copies for the modest price of £4. You can buy it here or by clicking the button on the sidebar.

This is the second part of the experiment. Since the dawn of time, bloggers (and indeed the legacy media) have been looking to monetise their product. If this works for us, then potentially it's another revenue stream that could keep the blog running – especially as we're trying to keep Pete employed, with limited sponsorship already supporting his blog.

At over 1,000 pages, the length of the e-book is exceptional. It's meant more for dipping into and reference than a straight read. And, using the ctrl F function, readers can do a word search on the whole year's in a matter of seconds. This is faster than can be done on-line.

And, although I say it myself, dipping into some of the old copy is a useful reminder of what went before. No single document can be a complete record, but we've covered a considerable amount of ground. Together with the 2,000-plus links, this is a major reference source.

Direct sales will help finance the next step in our development programme. That includes plans for a multi-author news site, possibly with folded into it. Additionally, the monograph series will continue and we are working on a number of new titles.

And, if all goes to plan, this time next year, we'll have another year of the blog for you. And you never know, we might even know where we're going by then. Miracles do occasionally happen.

Richard North 24/06/2017 link

Brexit: the first year

Friday 23 June 2017  

I didn't think we'd win – mainly because of the execrable campaign run by Vote Leave. The Cummings-Elliott nexus, backed by Johnson, Hannan and their "bus of lies" did their level best to lose it for us. We should have had more faith in the British people. They won the referendum for us.

But the big mistake (made by some) was thinking that this was the final victory. It wasn't. This was Churchill and el Alamein: not the end, not the beginning of the end but the end of the beginning.

An even bigger mistake had already been made, though – the craven, short-sighted refusal of the eurosceptic "movement" to get its act together and settle on a credible exit plan. This was compounded by the stupidity of the likes of Cummings and Arron Banks in walking away from the idea of a plan when one was offered to them on a plate.

A year on from the referendum, we still don't have a plan. We've lost a prime minister, gained another, gone through a general election and now a weakened government had started negotiations by surrendering to the "colleagues" … and we still don't have a plan. We don't even have a bus.

Instead, the entire politico-media nexus is thrashing around, the denizens parading their ignorance – hardly any of them, if any, able to tell the difference between a customs union and a customs agreement.

Just beginning to realise that they're not going to their fabled "comprehensive trade agreement" in time, they're climbing on board the "transitional" bandwagon without the first idea of what it entails or how to get there. For them, ignorance is bliss – to be cultivated and embraced.

In the beginning, it was so much easier. We had a choice between the unilateral, bilateral and multilateral – the WTO, Swiss and "Norway" options. Now, the options have grown exponentially, from the "no deal" at one extreme to carrying over the entire acquis on a long-term transitional agreement that is distinguishable from full membership only because we have lost any voting rights or influence in the system.

The irony of this is that the "Ultras" have spent so much time and energy thrashing around trying to avoid the obvious that they've failed to understand that, the longer a settlement is delayed, the less likely it is that they will get what they want. And if they keep muddying the waters, Brexit could go belly-up. It ain't in the bag yet and it ain't in the bag until it's in the bag.

Meanwhile, Theresa May has been in Brussels, giving away her leverage on expats. She has told the "colleagues" that no nationals of EU Member States living lawfully in the UK will be thrown out on Brexit day.

At the European Council, she said she wanted to offer "certainty" to the estimated three million expats living in the UK, making sure that families would not be split up. The deal, though, is that UK citizens living in EU Member State territory must be given the same rights.

However, there is still room for another cave-in. Mrs May has not yet agreed the cut-off date, when residency rights will end. And she has not yet conceded that the ECJ will retain jurisdiction in disputes over the finer details. But there is plenty of time for that.

As each concession is made, Mrs May's hand gets weaker, while the complexities mount. And breaking ranks from the consensus is JP Morgan which has its key economist declaring that the UK's expectations of Brexit talks are "unrealistic".

This is from Malcolm Barr, his company one of the world's largest banking institutions. And of the state of the UK , he said, "I'm not convinced that (the UK is) really very well prepared at all, to be perfectly blunt".

"I think that some of the expectations which this administration has encouraged people to have about what can be delivered through the Brexit process are a little bit unrealistic", he added, casting doubt on what the process can deliver.

Barr dismisses the idea "that we're going to be able to move directly [to control of migration, control of our regulatory and legal structures] as we leave at some point in probably March 2019, or perhaps a little after". He thinks "we need to be pretty realistic about realising that this is probably going to end up being a more phased and gradual process than much of the debate has suggested so far".

And there's the rub. Not in any conceivable way is this government or any other going to be ready for a full exit by March 2019. And yet, they've not even begun to think of how we're going to manage the transition.

The fact is that a transitional option is not a quick fix. It was simply the only way we had any hope of securing a stable exit within two years. And that pre-supposed that we were prepared, with all the ducks lined up, ready to hit the ground running. But weren't. We didn't have a plan.

The lack of clarity is reflected in the EU's position. The European Parliament's new president, Antonio Tajani, condemns the UK's negotiating position as "unclear". He raises the possibility of Britain staying in the Single Market after the Article 50 exit talks end, hinting at a longer-term transitional agreement.

Tajani raises the prospect of cooperation on the basis of the Swiss and Norwegian participation in the Single Market. But this, it is said, would "torpedo" Mrs May's exit strategy – such that it is.

The European Parliament President argues that the problem is what Mrs May and what the UK Government want to do. Do they want to leave Europe and nothing more, he asks, or do they want to have closer cooperation?

His own answer, rhetorical though it might be, speaks for us all: "Nobody knows", he says. And all because they didn't have a plan.

Richard North 23/06/2017 link

Brexit: known by its omissions

Thursday 22 June 2017  

Observing the more than usually lugubrious Prince Charles alongside his mother, yesterday, one could only marvel at the Queen's modernity in celebrating "bring your child to work" day.

Beyond that, two days short of the first anniversary of the EU referendum, there was precious little else to mark the day in a speech supposedly dominated by Brexit. This is what the Queen had to say:
My government's priority is to secure the best possible deal as the country leaves the European Union. My ministers are committed to working with Parliament, the devolved administrations, business and others to build the widest possible consensus on the country's future outside the European Union.

A bill will be introduced to repeal the European Communities Act and provide certainty for individuals and businesses. This will be complemented by legislation to ensure that the United Kingdom makes a success of Brexit, establishing new national policies on immigration, international sanctions, nuclear safeguards, agriculture, and fisheries.

My government will seek to maintain a deep and special partnership with European allies and to forge new trading relationships across the globe. New bills on trade and customs will help to implement an independent trade policy, and support will be given to help British businesses export to markets around the world.
One wonders if she actually listened to the words she had to say – whether there is some technology available which enables you to blank out the sound of one's own voice when speaking out loud. Only this – or perhaps long practice – would enable her to keep a straight face.

For all the vacuity, though, the words were oddly revealing, demonstrating a Government all at sea, locked in a bizarre "little Englander" paradigm that clearly shows that their priorities are dangerously skewed.

The issue, of course, is that if does not really matter that much whether the Queen's ministers "are committed to working with Parliament, the devolved administrations, business and others to build the widest possible consensus on the country's future outside the European Union".

What we actually need to know is whether ministers are committed to working with the European Union to that effect, because it is only by so doing that we are going to achieve anything at all which will stave off economic disaster. Bereft of any ideas of its own, the Government will find itself having to look to Brussels for its salvation.

As regards the legislative package, we are told that there will be 27 Brexit-related Bills in what the Prime Minister promises to be a busy legislative session.

The key measures will include the Repeal Bill – already flagged up innumerable times, which repeal the European Communities Act 1972 and convert EU law into UK law as we leave the EU. It will also create temporary powers for Parliament to make secondary legislation, enabling corrections to be made to the laws that do not operate appropriately once we have left the EU.

Additionally, there will be power to make changes to domestic law to reflect the content of any withdrawal agreement under Article 50 and to replicate the common UK frameworks created by EU law into UK law. This, apparently, will be a transitional arrangement to provide certainty after exit and to allow intensive discussion and consultation with the devolved administrations on where lasting common frameworks are needed.

Newly offered (to my recollection) is a Customs Bill. It is noted that the EU customs code currently applies directly in the UK and it now seems to have dawned on the few grown-ups left in Government that we will need our own code.

Thus, we are told, this Bill will ensure that the UK has a standalone UK customs regime on exit. It will give us the flexibility to accommodate future trade agreements with the EU and others, and it permits changes to be made to the UK's VAT and excise regimes to ensure that the UK has standalone regimes on EU-exit (assuming that we are keeping VAT).

One does worry more than a little here, though, because the customs regime will depend intrinsically on the agreements we are able to make with our trading partners, and in particular, the European Union.

Rather than ensuring that the UK has its own regime, therefore, one suspects that this will result in an enabling Act which permits ministers to promulgate the myriad of technical regulations that will allow the system to function. When we will see those regulations is another matter.

Following on from this is a Trade Bill which will (in the Government's words) "cement the United Kingdom's status as a leading trading nation, driving positive global change through trade, whilst ensuring UK businesses are protected from unfair trading practices".

That, for an Act of Parliament, is a pretty tall order. Some might even avow that this is not the function of an Act, and neither is the objective solely (or at all) within the Government.

Nevertheless, we are promised that the Bill will put in place the essential and necessary legislative framework to allow the UK to operate its own independent trade policy upon exit from the European Union. That seems more realistic, except that trade policy again will depend on the nature and scope of the agreement with the EU.

Next in line we have an Immigration Bill. With the repeal of the European Communities Act, we are told, it will be necessary to establish new powers concerning the immigration status of EEA nationals.

The Bill will allow the Government to control the number of people coming here from Europe "while still allowing us to attract the brightest and the best". It will allow for the repeal of EU law on immigration, primarily free movement, that will otherwise be saved and converted into UK law by the Repeal Bill, and make the migration of EU nationals and their family members subject to relevant UK law once the UK has left the EU.

Suspicious-minded people might note that the Act (when it comes into force) is not intended to end free movement, per se, but simply to "allow for the repeal of EU law". Whether we do, or not, is another matter.

Similar suspicions might be directed at the Fisheries Bill, which will enable the UK "to exercise responsibility for access to fisheries and management of its waters". One should note the ambiguous wording. There is no claim that the Government is to control access, or even manage the fisheries. Simply, we are to "exercise responsibility" – which is an altogether different thing. If not actually a sell-out, it paves the way for one.

Less ambiguous is the Agriculture Bill, which will ensure that after we leave the EU we have an effective system in place to support UK farmers and protect our natural environment. The key thing, as far as the farmers will be concerned, will be the amount of money in the kitty, and the terms of its distribution. And that we will not know until secondary legislation appears.

Nevertheless. The motherhood and apple pie words are there, with the Bill aiming to provide stability to farmers as we leave the EU and to "protect our precious natural environment for future generations".

Then a Nuclear Safeguards Bill will establish a UK nuclear safeguards regime as we leave the European Union and Euratom. This will take over from locally administered provisions of Euratom, giving the Office for Nuclear Regulation powers to take on the role and responsibilities "required to meet our international safeguards, and nuclear non-proliferation, obligations".

An International Sanctions Bill will support our role as a permanent member of the UN Security Council and a "leading player on the world stage", by establishing a new sovereign UK framework to implement international sanctions on a multilateral or unilateral basis.

This Bill, we are told, will return decision-making powers on non-UN sanctions to the UK and enable the UK's continued compliance with international law after the UK's exit from the EU.

Here, the devil is in the detail, but the very presence of this Bill in the line-up indicates that there might be some grown-ups left in the deepest recesses of Whitehall. Where this takes us will need careful watching.

Of the other Bills, these have relevance in dealing with the consequences of Brexit, such as the Space Industry Bill. Bearing in mind that we could drop out of the EU's space programme (although this would be ill-advised), the Bill will create new powers to license a wide range of new commercial spaceflight, including vertically-launched rockets, spaceplanes, satellite operation, spaceports and other technologies. It also creates a regulatory framework to manage risk, ensuring that commercial spaceflight in the UK remains safe.

Intentional or not, this actually gives a strong signal that the UK is not looking for cooperative ventures with the EU, although we will have to wait to see where we go with Galileo and other projects.

Here, and elsewhere, though, there are strong elements of wishful thinking – and much missing on the Brexit front. We should be getting clear indications of how the UK intends to frame the negotiations, especially if there is to be a transition agreement. It is hard to see whether that could be achieved without new legislation.

However, asking for such detail is probably too much to ask, as the Government itself most likely does not know its own intentions. It has thus been said that this Queen's speech will be best known for what it left out. The omissions may well prove to be more important than what so far has been revealed.

Richard North 22/06/2017 link

Brexit: another phoney Brexit

Wednesday 21 June 2017  

Chancellor Philip Hammond made his much-delayed speech yesterday. This is the man who thought that the cladding used on Grenfell Tower had been banned in the UK, provoking a swift denial from a lead firm in the renovation project. 

And now he has been giving us the benefit of his wisdom on "what we want to achieve from those Brexit negotiations". The Prime Minister's Lancaster House speech in January, he said, "had set out clearly the arrangements that the UK would like to agree, built around a comprehensive trade agreement in the context of a deep and special partnership that goes much wider than trade".

But, said the Chancellor, "we recognise that this is a negotiation, and our negotiating counterparts, while broadly sharing our desire for a close ongoing relationship, will have their own priorities". As to our own priorities, we must be "clear" about them. When the British people voted last June, they did not vote to become poorer, or less secure, but they did vote to leave the EU. And we will leave the EU.

But, Hammond declared, "it must be done in a way that works for Britain. In a way that prioritises British jobs, and underpins Britain's prosperity". He added: "Anything less will be a failure to deliver on the instructions of the British people". This brought us to the moment we'd all been waiting for: how we were going to achieve what the Chancellor called "Brexit for Britain".

Firstly, he said, we would secure "a comprehensive agreement for trade in goods and services". Secondly, we would negotiate "mutually beneficial transitional arrangements". These would "avoid unnecessary disruption and dangerous cliff edges". 

Thirdly, said our miracle worker, we would agree "frictionless customs arrangements to facilitate trade across our borders – and crucially – to keep the land border on the island of Ireland open and free-flowing".

To achieve this last miracle, "in the context of our wider objectives" would, said Hammond, "be challenging". It will almost certainly involve, "the deployment of new technology". Therefore, he added, "we'd certainly need an implementation period, outside the Customs Union itself".

To allow this, current customs border arrangements would remain in place until new long-term arrangements were up and running. And then finally, Mr Hammond had one big trump card. He was going to take a "pragmatic approach" to one of our most important EU export sector – financial services.

This would need "a new process for establishing regulatory requirements for cross-border business between the UK and EU". This would have to be "evidence-based, symmetrical, and transparent" and "reflect international standards".

Cooperation arrangements had to be "reciprocal, reliable, and prioritise financial stability". Crucially these had to enable "timely and coordinated risk management on both sides". Third, these arrangements have to be permanent and reliable for the businesses regulated under these regimes.

As far as migration goes, Mr Hammond would have us seeking to manage it. We would not seek to shut it down. But, beyond that, no detail was offered. This, though, was the tenor of the entire speech. One could not say it was "wishy-washy" – just "wishy". The speech was long on aspiration but entirely lacking in execution.

Yet, despite this, the Chancellor was "confident" that we could do "a Brexit deal that puts jobs and prosperity first". This would be a deal that "reassures employers that they will still be able to access the talent they need", one that "keeps our markets for goods and services and capital open" and one that would achieve "early agreement on transitional arrangements".

And in this lovely, fluffy, cuddly Brexit that Mr Hammond has invented for us, "trade can carry on flowing smoothly, and businesses up and down the country can move on with investment decisions that they want to make, but that have been on hold since the Referendum".

I seem to recall writing earlier about my aspirations for gaining the exclusive franchise for Lunar Green Cheese, with a quota of 1000 tons a week, beamed down directly from the Sea of Tranquillity by a matter transporter. But, it appears, Mr Hammond has beaten me to it. In Brexit terms, he's cleaned out the pool.

There is no going back from this. Either we have a minister here with hidden depths, a man who all this time has been sitting on a brilliant plan, the like of which the world has never seen, or we're dealing with yet another Walter Mitty character, living in a parallel universe, and not even the same one as Mrs May.

Particularly interesting is that Hammond too has joined the ranks of the "transitionals". Having caught up with the rest of the world, in understanding that we cannot conclude Mrs May's "deep and special partnership" inside the period allocated, he has embraced the idea that everything can be solved by "mutually beneficial transitional arrangements".

What nobody is admitting, least of all Mr Hammond, is that a transitional agreement is not quick fix. He, like the others, should have appreciated that the complexity is such that the two-year Article 50 period is barely (if at all) sufficient to craft such an agreement.

Looking at the most recent member of the European Union, Croatia, we see that it applied for membership in 2003 and was in negotiations from 2005 until 2011. The 116-page accession treaty was signed on 9 December 2011.

The essence of accession treaty is that it is (to a very large part) a transitional agreement, easing the entry of a joining nation into the Union. That is takes six years is a good indication of how long these things can take and it is not at all untoward to imagine a transitional agreement with the UK taking those two years that Article 50 allows.

The very fact that so many are leaping on this transition bandwagon is in itself and indication that they are little idea of what is involved. Having already wasted so much time, it is questionable whether there is even time to complete a basic agreement.

Hammond, coming to the party late, is playing games. There is nothing anywhere to indicate that his "ideas" have any more substance than the words in his speech, which were pathetically thin. He has joined the ranks of politicians selling their phoney Brexits. That is all these people have to offer.

Richard North 21/06/2017 link

Brexit: anti-climax

Tuesday 20 June 2017  

In first-day talks that were described by EU officials as "window dressing", David Davis and his "Team Brexit" effectively caved in to Brussels, agreeing to phased negotiations on their three "divorce" points.

In what has been called a "major defeat", there was no commitment to run parallel talks on trade, that ambition having been abandoned within hours of the Brexit Secretary having arrived in the Council building.

Last month, Davis had boasted that he would provoke the "row of the summer" unless he got his way on immediate trade talks, predicting an early collapse if the EU refused concessions.

Instead, the Brussels agenda is going ahead, with three working groups set up, one on EU citizens' rights, one on the "financial settlement" and the other on border issues, in particular, the border with Northern Ireland.

At the press conference after the session, Davis had to admit that the trade issue would only be entertained when the EU had decided that "enough progress" had been made on the EU's negotiating priorities. Confronted with the "weakness" of his negotiating position, Davis could only put on a brave face, claiming: "It's not when it starts but how it finishes that matters".

That much we get from the media – a totally predictable outcome. Davis caved in because he had to cave in. It was that or walk away immediately. The "colleagues" were not in a mood for games.

Mr Davis's humiliation, though, is the least of our troubles. There is no evidence that Mrs May's weakened government has a coherent (or any) plan. Beyond phase one of the negotiations, there is a black hole, from which nothing escapes.

We are getting to the point where, as far as this blog goes, virtually everything that could be said has been said. We have reached the stage where we are simply repeating ourselves while the noise level continues to climb and nothing can be heard above the din.

It is not just a question of this blog being ignored. Even seasoned civil servants and former government advisors are being frozen out of the loop, while ever-vacuous academics fill space on nostrums which demonstrate how little they have thought about this complex subject.

Basically, we have one option – the one we've only ever had: a continuation of EEA membership, if the Efta states will agree to our joining them. Without that, there is an outside possibility of redefining the Efta institutions to permit UK participation without membership, but this will not be easy or quick to set up.

Even then, those who are belatedly, jumping on the EEA bandwagon display such a limited understanding of the EEA Agreement and the treaty structure – much less of the possibilities afforded – that we are scarcely in a position to take advantage of the option.

All that is theoretical anyway. The EEA is not currently on the table and Davis has retreated to cloud-cuckoo land. He insisting that there is much "common ground" with the EU and that the timetable for withdrawal, while "ambitious" is "eminently achievable". This is very much a case of fools rushing in where angels fear to tread, with nothing of substance to support it.

If ever there was a time for the slow-motion train crash analogies, this is it. There is actually little more we can do, other than watch and wait – and record the progress of that train on its final departure from the permanent way.

Richard North 20/06/2017 link

Brexit: the Grenfell dimension

Monday 19 June 2017  

I have written before about the impact of the occupied field doctrine in EU law, and you can even find an informal definition if you look on the net. Broadly, it refers to legislative areas (or fields) which the EU treaties have defined as "shared competences", where both the EU and Member States have law-making powers (competence).

When these areas are first defined, and the EU (usually the Commission) has not sought to make any laws in that field, the Member States many continue making national legislation. However, once the EU legislates in the area, it becomes what is known as an "occupied field".

Then, in the precise areas in which the EU has legislated, the Member States are no longer permitted to legislate. In parallel or related areas, where the EU has no immediate intention of legislating, Member States may make their own laws, but only with the permission of the Commission, which – on notification of a request – may refuse and instead decide to legislate itself.

The basis of this doctrine is set out in Article 2(2) of the Treaty of the European Union (TEU), which states:
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
However, if you search the internet, will you not find very much written about the doctrine This is because, in the deep, arcane recesses of integration theory, they do not label it "the occupied field". It is known by the far more obscure title of "field pre-emption", alongside the related issues of "obstacle" and "rule pre-emption".

The doctrine itself is well known in federal structures, and is a facet of both the Indian and the US constitutions. In the EU context, though, from its original treaty base, it has been vastly expanded through ECJ jurisprudence and case law. Although the precise application tends to vary with different rulings, and between different areas of the acquis, it is a very real and important doctrine which has important practical effects.

It is upon this doctrine which I rely in my earlier piece when I asserted, in respect of the construction standards relating to the cladding used on Grenfell Tower, that the UK Government no longer has the authority to define its own standards (and has not had the authority since 1989 when the first Directive was promulgated).

The reason for this is that the Construction Products Regulation (repealing Council Directive 89/106/EEC) extends the competence of the Commission into the field of construction standards, using its powers under Article 114 relating the functioning of the internal market. Article 114 creates a shared competence and, as the Commission has exercised its power in respect of construction standards and the internal market, this is why the Member States have lost their power.

The way that the Construction Products Regulation (CPD) works, though, is quite complex - to the point of being thoroughly confusing to those not familiar with it.

The system starts with what are known as European Harmonised Standards, with the Regulation (and the Directive before it) recognising the European Committee for Standardisation (CEN) and the European Committee for Electrotechnical Standardisation (Cenelec) as the competent organisations for their adoption.

These standards are thus produced by Cenelec, in the form of EN standards. They take legal effect by being posted in the Official Journal as a Commission Communication within the framework of the CPR (Regulation (EU) 305/2011).

Once they are promulgated, adoption by the Member States becomes compulsory. They are obliged to remove or modify existing national standards to remove any conflicting requirements, in order to bring them into line with the EN.

As it stands, there are only about 450 harmonised standards, which include such delights as EN 15821:2010 on "multi-firing sauna stoves fired by natural wood logs". But, as yet, there is no harmonised standard for composite external cladding panels of the type used on Grenfell Tower.

This means that, where Member States already have their own national standards relating to such products, they are allowed to stay in force. And this explains why – even though standard-setting is an EU competence – different Member States (such as Germany, the Czech Republic and Denmark) still have their own standards.

However, that does not mean that Member States have the automatic right to continue framing their standards. Under the doctrine of "field pre-emption" (aka "occupied field"), they must seek permission from the Commission before they make any changes. In practice, this means that they must formally notify the Commission of an intended change, and if the Commission does not object, the new standard can take effect.

In considering whether to intervene, the Commission – even if Cenelec has no immediate plans for a harmonised standard – will be looking for a gradual convergence between the Member States and will not normally look favourably on proposals which magnify differences between regulatory regimes.

From that base, though, it gets even more complicated. Even where there is no harmonised standard, there is a second tier of standard-setting. This, rather than creating generic standards, allows individual manufacturers to certify their own products as conforming with regulatory standards, permitting the application of CE marking.

The way this works is under the aegis of a dedicated body, the European Organisation for Technical Assessment (EOTA), the function of which is to produce European Assessment Document (EADs).

These are harmonised technical specification for construction products, which apply where there are no formal harmonised standards. So far, 113 have been produced, each of them extremely detailed documents, setting out "essential characteristics" of a product, detailing "relevant assessment methods and criteria".

Once an EAD exists, a manufacturer can apply to a national Technical Assessment Body (TAB) and ask it, on the basis of the EAD, to produce a European Technical Assessment (ETA) in respect of their products. This becomes the basis of a formal Declaration of Performance (DoP) which then allows the manufacturer to CE-mark their product. This in turn allows the manufacturer to sell the product throughout the EU (EEA).

Interestingly, the very product said to have been used to clad Grenfell Tower has been given an ETA in the form of an Agrément Certificate issued by the British Board of Agrément (BBA) (pictured). This is the relevant TAB for certifying that the product is "fit for purpose" and conforms with UK Building Regulations.

This completely contradicts Chancellor Philip Hammond's assertion that the cladding used on Grenfell Tower, which has been widely blamed for spreading the blaze, is banned in the UK on (areas of) buildings above 18 metres. It is also at odds with the claim by the Department for Communities and Local Government, which has said that, if this cladding was used, "it would not comply with current building regulations".

The Agrément Certificate attests that, in relation to the Building Regulations for reaction to fire, the panels may be regarded as having a Class 0 surface – which is the standard set in Building Regulations Approved Document B1 (see page 95).

Now, going back to the purpose of this Certificate as the basis of the product CE Marking, this means that the product can be marketed anywhere in the EU/EEA for the use intended – as external cladding.

In the absence of a harmonised standard, Regulation (EC) No 764/2008 on the mutual recognition of standards applies. In the wake of the Cassis de Dijon judgement, this Regulation stops any national authority from prohibiting the sale on its territory of goods which are lawfully marketed in another Member State, "even where those products were manufactured in accordance with technical rules different from those to which domestic products are subject".

On this basis, not only is the cladding not "banned" in the UK (quite the reverse), it is difficult to see how its sale could be legally banned in Germany or any other EU Member State.

As to whether the product could be banned by the UK government, the answer is qualified. The Government could only apply the procedure set out in Article 58 of the CPR, implementing only those measures which the Commission considered justified.

Looking at all this in the round, in what is my second blogpost on this subject, it would be perverse to assert that there was not an EU dimension to the Grenfell disaster. But the extent to which the EU could be considered to have had a part in the disaster is a matter of judgement, and one can only speculate as to whether things would have been different had we been our own masters.

In the interests of completeness, one must say that all these provisions apply to the EEA, so that if the UK adopted the Efta/EEA route for Brexit, we would see no immediate relief from them. On the other hand, without these provisions in force, it would be difficult for the UK to market construction products on the European market (notwithstanding that Reynobond is made in France).

To that extent, not only does the Grenfell Tower disaster have an EU dimension, Brexit has a Grenfell dimension. When we consider how to prevent any repeat of such a disaster, we are going to have to consider very hard the nature of the regulation we carry over, and how we then modify it to restore any necessary functionality that we might have lost.

Richard North 19/06/2017 link

Booker: Grenfell – the EU dimension

Sunday 18 June 2017  

Already, there have been mumblings in the shrubbery about EU involvement in the Grenfell disaster, with an article in the Express asking: "Did EU regulation mean deadly cladding was used on Grenfell Tower?"

The Express story focuses on EU regulations which "set out rules for buildings’ energy consumption with Britain signed up to the 2010 Energy Performance of Buildings Directive", telling us that:
Article 24 of the directive was cemented into UK law in April 2014 and a Government report says "bringing as many residential and commercial buildings as possible up to a high level of energy performance is a priority for the UK Government".
However, turning to Article 24 of Directive 2010/31/EU, it very clearly does not require cladding, deadly or otherwise, to be used on any building. In fact, one is hard put to see quite what the relevance of the article is to anything. Headed: "Revocation of the delegation", it tells us that: "The delegation of powers referred to in Articles 5 and 22 may be revoked by the European Parliament or by the Council".

Nevertheless, the Directive does have considerable relevance, its energy efficiency requirements for new and modified buildings having been enacted in the Building Regulations 2010 which came into force on 1 October 2010 (not 2014 as the Express asserts). Part 6 is the relevant code and would have applied to Grenfell House. Thus, the requirement to insulate the building most definitely has an EU dimension.

That said, there are no legal requirements as to the way the improved energy efficiency should be achieved – and therefore it cannot be said that there was any specific EU requirement to install combustible cladding to the exterior surfaces of the tower block.

The omission of any specific requirement has brought the likes of Frances Coppola and Steve Peers out of the woodwork, squeaking with rage. Tweets Coppola: "FFS. No. EU energy efficiency regulation did NOT mean flammable cladding had to be used. How low can Kippers sink?"

Steve Peers then tweets that: "the EU energy efficiency law does not override safety rules, as the preamble states expressly". The correct term here is "recital" – and you would expect a self-proclaimed expert in EU law to get that right. But never mind. Peers quotes the recital (No 8) in full, as follows:
(8) Measures to improve further the energy performance of buildings should take into account climatic and local conditions as well as indoor climate environment and cost-effectiveness. These measures should not affect other requirements concerning buildings such as accessibility, safety and the intended use of the building.
He's being a little bit precious here, as the recital does not specifically mention fire prevention, and nor does the need to maintain a high level of fire protection appear anywhere in the Directive. Nevertheless, if the Directive does not explicitly mention fire, the Building Regulations do. If one refers to Part L, this reads across to the "Approved Document L1B" on the conservation of fuel and power.

Under the heading, "Consideration of technical risk", it tells us that building work to existing buildings must satisfy all technical requirements, and that when considering the instalment of energy efficiency measures in dwellings, "attention should also be paid in particular to the need to comply with Part B (fire safety) …".

Ostensibly, this seems to support the Peers assertion, except that – as always – the devil is in the detail. But people such as Peers do not do detail (and he tends to run away and hide when challenged). In order to comply with Part B, one must refer to "Approved Document B". Either of the two volumes will do, as they both give the technical specifications for fire resistance for external cladding.

Now here it gets complicated. Products can actually comply with a variety of standards, including the relevant British Standards. But not defined by any standards institution is a specification specific to Part B, known as the "National Standard", in which context, the product must be conform to Class 0.

Defined in the Standard, this applies only to the surface of the material, in this case a composite made from an aluminium skin with a highly combustible core. Basically, the flammability requirement applies to surface propagation of flame, a test that the aluminium skin can easily pass.

That, then, would look to be the cause of the problem – a gravely deficient standard which did not allow for flames from inside a flat venting up the cavity between the cladding and the structure and setting fire to the combustible core, with the tragic effects we have seen.

As to this standard, the official test specifically excludes the "chimney effect" scenario, with the fire originating from inside the building. Even with the lethal defect, this cladding will pass the official test and thereby comply with Building Regulations.

But that is not the end of it. Although the fire safety requirements are set by the National Standard, this in turn takes its parameters not from the British Standard but from the applicable "harmonised standards". This is part of a system introduced by the Construction Products Directive, and revised by Regulation (EU) 305/2011. In the UK, it is implemented by our Building Regulations. 

In the specific case of external cladding, the UK applies a standard for blocks above 18 metres using EN 13501-1, class B-s3, d2. To all intents and purposes, the National Standard, while not directly comparable with the EN, is no more severe than it. Anything which passes the relevant part of the EN can be assumed to comply with the Building Regulations Part B requirement.

This brings us to the crux of the matter. The EN standard, in respect of fire safety in relation to external cladding is known to be deficient. Even the most rigorous application of material and individual component testing will not necessarily predict overall system performance, and cannot therefore be used as a valid or even useful indicator of its safety. The European standard is fundamentally flawed.

Arguably, this situation could be resolved by the UK taking unilateral action and defining a new, more rigorous standard of its own. But there we are hit by the EU dimension. Because of the Construction Products Regulation and its preceding Directives, in force since 1989, the definition of building standards is what is known as an "occupied field". The UK no longer has the authority to define its own.

Much is made of Germany having more rigorous standards, but my understanding is that the Federal Government had them in place before the first (1989) directive. It is allowed to keep its existing codes in place, as indeed are we, allowing the progressive implementation of European standards.

The way this works is that the standards are voluntary, unless they've been officially adopted as a European Harmonised Standard. The cladding standard is not an official harmonised standard, so different Member States are free to apply their own standards.

However, when CEN National Members (including all EU Member States) decide to implement a standard, they are obliged to withdraw any National Standards conflicting with it. In German states, adoption of new codes is now obligatory. And under EU law, once they've  adopted a standard (even though voluntarily), they cannot implement new standards which are more severe than, or conflict with, harmonised standards.

That is not to say that the UK would necessarily have introduced new standards, had we been an independent state. But under the current regime, there is no point in even trying. We are a passive law-taker and no longer think for ourselves.

What is fair to say though, is that the EU – having taken away our scope to act independently – has dropped the ball on fire prevention. Obsessed with its climate change agenda and the need to meet Kyoto commitments, it has channelled all its (limited) energies into "green" standards for buildings, and neglected other matters, particularly fire safety.

Reviewing the situation, one can see complaints going back ten years that complex structures are not covered by existing regulatory requirements. Before that, even, stretching back nearly 20 years, the fire potential of external cladding has long been a concern.

After a fire in a multi-storey block of flats in Irvine, Ayrshire on 11th June 1999, which killed an elderly man, the Select Committee on Environment, Transport and Regional Affairs set up an inquiry to review the safety of cladding on tower blocks.

Evidence offered to the inquiry published in July 2000, (including from the Fire Brigades Union,suggested that the "guidance" given in Approved Document B "may not be adequate for the purposes of ensuring the safety of external cladding systems in a fire". The Committee was also told by Peter Field of the Buildings Research Establishment, which had done a great deal of work on these issues, that the existing guidance was "far from being totally adequate".

Tragically, while the Committee recommended improvements to existing legislation and testing, neither it nor the Government acknowledged the EU dimension or the need to secure EU Commission approval for any changes. And no fundamental changes were made.

There is no record even of the Commission having been approached to review its own requirements, but it is a matter of record that, having deprived us of the power of define new standards, the EU has not stepped up to the plate and filled the regulatory void. It may not, therefore, be directly responsible for the fire in Grenfell Tower, but it cannot be completely absolved from responsibility. In any reckoning, it too must join the list of organisations that has had a hand in this disaster.

Enter now Christopher Booker who writes in today's column that it was certainly an ominous coincidence that 1974, the year Grenfell Tower was opened was also the year that Hollywood released what was arguably the most famous "disaster movie" ever made, The Towering Inferno.

But, on Wednesday, as we woke up to the horror of what was happening, he received an email that added another curious detail to this awful story. It was from the man who back in the Seventies sold to the local council the original cladding for Grenfell Tower. As he explained, it then consisted of Glasal panels in which were sealed white asbestos cement, so tightly compressed that no fibres could escape.

"It was totally safe", he told Booker, "and would certainly have stopped the spread of any external fire; unlike this new cladding, which contains combustible plastics which can spread a fire up a building so fast that in some countries it has already caused whole buildings to go up, and in others it has been banned".

A much more immediately relevant point, however, on which the forthcoming inquiry will certainly have to focus, Booker says, is what might be called the "European" dimension to this tragedy. So far wholly missed has been the fact that making construction regulations, including those relating to fire risk, is an exclusive "competence" of the EU. Britain has no right to make its own, without Brussels permission.

Furthermore in 2014 the Department of Energy and Climate Change issued its National Energy Efficiency Action Plan, setting out how it planned to meet its EU targets for reducing “carbon emissions” (and also those set under our own Climate Change Act).

In particular, it emphasised the need to comply with Directive 2012/27/EU on "energy efficiency". This explained that the top priority was to improve the insulation of buildings, responsible for 40 percent of all emissions. Local authorities were thus made aware of the section on renovating older buildings, adding an extra impetus to the growing body of climate change legislation.

When Kensington and Chelsea council chose the new cladding for Grenfell Tower it would, therefore, have known that top of the list was the need for "thermal efficiency". On this score, plastics such as polyurethane, polyethylene or polyisocyanurate rated most highly, despite their fire risk. There was even financing available under the government's Green Deal scheme.

Booker long ago took a personal interest in the estate on which Grenfell stands. He spent much of the Seventies investigating the disaster that had been inflicted on so many cities by the Sixties mania for massive "comprehensive redevelopment schemes" and giant council tower blocks.

When he began in 1972 with a book called Goodbye London: An Illustrated Guide to Threatened Buildings, listing all the demolition schemes then planned across London, it opened with a page of pictures showing the vast area of pleasant, human-scale 19th century streets in north-west Kensington shortly to be demolished for the estate that would include Grenfell Tower.

By 1979, Booker had been commissioned by the BBC to make a two-hour television film, City of Towers, which for the first time told the whole story of how the destruction of our cities had been inspired by the megalomaniac dream in the Twenties of the Swiss architect Le Corbusier; and how this led 40 years later to those vast dehumanised council estates, dominated by tower blocks like Grenfell, half of which have since been demolished.

The way our politicians, national and local, were taken in by this maniacal vision was yet another perfect case-study in the deluding power of groupthink. As so often, a beguiling dream had led in reality to a nightmare reality. Grenfell Tower stands today as the most chilling tombstone yet to that mad dream.

As Booker concludes his own piece with that thought, we can also conclude that the Tower stands as a monument to the breakdown of the UK system of government – both locally, when we observe the response to the disaster - and also at that European level where membership of the European Union has deprived us, in important respects, of the ability to govern ourselves.

Richard North 18/06/2017 link

Brexit - the first year - New e-book by Richard North
Brexit - the first year - New e-book by Richard North
Buy Now

Log in

Sign THA
Think Defence

The Many, Not the Few