EU Referendum


Brexit: crisis means crisis


09/06/2018




With the world's press rushing to Brussels to hear Michel Barnier's latest statement – not (picture), the UK media is doing its level best to trivialise what is becoming an existential crisis for our nation, focusing on the ghastly Johnson and his extrusions.

It's not even a question of them not being able to help themselves. By and large, the media doesn't even realise it is doing anything wrong in framing the current Brexit developments in terms of the "tensions" between the prime minister and her loathsome foreign secretary.

The day before yesterday we saw that publication of HMG's proposals for the "backstop" to deal with the Irish border crisis – attempting to break the logjam that could otherwise bring the negotiations to a halt. Yesterday came the response of the EU's chief negotiator – so well-attended by the press.

Diplomatically, Barnier refused to dismiss Mrs May's "customs paper" out of hand but, in observing that it had failed to address regulatory alignment, effectively marked it down as failing to deliver "a workable solution to avoid a hard border". He then expressed serious reservations on the other two criteria by which he was assessing the paper.

Whether stated explicitly or not, that means that the attempt (half-hearted, to say the very least) to break the logjam has not succeeded. That is could never have succeeded – as was evident in yesterday's post – is neither here nor there. The fact is that, after the end of another round of Brexit negotiations, we have made no further progress.

With less than three weeks to go before the June European Council, when a legal text on the "backstop" was supposed to have been finalised and agreed, this means that we are fast running out of time. And, given the official response from No 10, there does not seem to be any likelihood of a meeting of minds in the near future.

A UK government spokesperson, we are told, has reiterated the prime minister's view that she will "never accept a customs border between Northern Ireland and the rest of the UK". She is "also committed to maintaining the integrity of our own internal market. That position will not change".

According to this source: "The Commission's proposals did not achieve this, which is why we have put forward our own backstop solutions for customs. All parties must recall their commitment in the Joint Report to protect the Belfast Agreement in all its parts".

The media in general seems to have got itself obsessed with the "single customs area", which is what appears to have been proposed by Mrs May's "customs paper". But the issue at large is regulatory alignment. HMG has rejected the idea of common (EU) regulations in the whole of the UK, and it is this that prevents there being a common customs area.

We are, therefore, back full-circle. To avoid a hard border between Ireland and Northern Ireland, there have always been only a limited number of options. Either the UK as a whole must maintain regulatory alignment with the EU (as a basic minimum) or the alignment can be limited to Northern Ireland, with the proviso that the hard border is moved to the Irish Sea, between Northern Ireland and Great Britain.

Come what may, if the UK choses a path outside the Single Market, there will have to be a border somewhere. It cannot be said often enough that, when the UK leaves the EU and becomes a third country, the land border between Ireland and Northern Ireland becomes part of the EU's external border.

Even to this day, the UK Government does not seem to have come to terms with the reality of this. The EU is not creating the border – the external border has always existed for as long as there has been a European Union, and the EC and EEC before it. In leaving the EU, the UK has caused that border to move.

Further, if there are to be special concessions in order to avoid this becoming a hard border in Ireland, then the EU must apply a regime which is specific to the circumstances. This also cannot be said enough. In order to maintain the integrity of its entire external border, the EU cannot afford to create a precedent which will allow its other trading partners to claim similar concessions.

We can rail about the iniquity of this for all we are worth, but these are the unalterable facts. Since 1994, we have been shielded behind the EU's external border which has defined the Single Market, "enjoying" the privileges while being bound by the rules. If we are determined to throw off the "yoke" of Brussels and abandon those rules, then we lose the privileges as well. It really is that simple.

That Mr Barnier isn't making life particularly easy for us right now, is also not really the point. The EU collective is now the other side of the table. We cannot look to its institutions and members to look after our interests. That is down to our own politicians and negotiators.

And if they are moving to shaft us, tant pis. That's what they did when we joined the EEC and one of the many reasons why we wanted to leave. Did anyone really expect we were going to get an easy ride? But, difficult though Brexit may be, it is being made even more difficult by the catastrophic inability of our political masters to deal with its realities.

As it stands, Barnier drones on about the indivisibility of the four freedoms within the European Union. And he is right to do so within the constraints of EU law. But it was always open to the UK to opt for Efta/EEA membership, ditching the EU treaties and becoming fully paid-up (to coin a phrase) parties to the EEA Agreement.

What seems to escape Barnier (not that he's actually addressed it directly), is that the EEA Agreement is not an EU treaty. Efta/EEA members do not adopt EU law. They take EU law and convert it into EEA law, which they then adopt.

Within the framework of EEA Agreement, the four freedoms are not indivisible – there are the safeguard measures which permit - as an absolute right under treaty law – conditional modification of the treaty provisions. Even to this day, the Icelandic government imposes restraints on the free movement of capital, invoking Art 112 which puts into effect the safeguard measures.

For some - of extremely limited intellect – there is a belief that safeguard measures are somehow a "loophole", that they are in effect "cheating" and should only be used in exceptional circumstances, or in an emergency. But missing entirely from the provisions are the words "exceptional" and "emergency". The circumstances which give rise to their use must be "serious", but then who could possible argue that there should be flippancy in their invocation?

The point is that safeguard measures - and their handmaidens, the "waivers" – are an established part of the corpus of treaty law. The EU treaties are the exception rather than the rule in not making good use of them.

That said, we get the dismal litany about the various conditions appertaining to and the potential consequences of using Art 112, usually accompanied by a complete failure to understand that Liechtenstein – which has successfully constrained FoM law – does not rely on Art 112. It has negotiated a permanent amendment to the EEA Agreement (permanent in the sense that it cannot be changed without Liechtenstein's agreement) – an option that would be open to the UK as an Efta state, if not now then sometime in the future.

Such matters, though, are not for Barnier to consider – his mandate does not cover the EEA. These are for UK politicians, looking after UK interests, to address. And so far, they have made a complete pig's ear of their responsibilities, displaying an almost criminal negligence in their inability to confront what is probably the only reasonable option we have for Brexit.

Day after day, week after week, stretching into months and now years, we see the same dismal arguments being rehearsed, spilling over into the blog comments, where we get endless, tedious churning around the same failed arguments. Invariably, they are expressed by people who lack either the imagination, the intellect or the will to understand that there is a way out, if we choose to take it. Of some of those, there is a proportion that would wish to see us fail.

But, between the blathering of the media, the crass, criminal stupidity of our politicians, and the venal self-indulgence of a population which can't even bring its own representatives to task, we are now facing a crisis the like of which we have not seen since the war.

The consequences of that, potentially, are devastating. It is not acceptable, therefore, that the malign, disgusting foreign secretary should glibly talk of us not panicking while wishing on us the "chaos" that President Trump might bring. If Brexit means Brexit, crisis mean crisis. This is a territory none of us want to visit.

We have but weeks now before we slide inexorably into that crisis, passing the event horizon to a point of no return. It is unconscionable that we should be dragged into it by the dereliction and stupidity of a gang of loud-mouthed Westminster ignoramuses.

If the Brexit settlement cannot be resolved sensibly, we will live to regret it. But there would then be people upon whom I would wish to see visited a wrath, the like of which only a nation betrayed can deliver. "Last chance saloon" doesn't even begin to capture the gravity of the situation, but the meaning is clear enough. Those who will be the focus of our wrath are drinking at the bar.