Richard North, 07/09/2018  

I seriously wonder how much longer we will have to put up with this sort of idiocy in the Mail. Its report has transport secretary Chris Grayling planning to negotiate 27 separate aviation deals with individual EU Member States in the event of a "no deal" Brexit, supposedly so that civil aviation operations can continue uninterrupted.

Needless to say, this isn't going to happen. The technical details are complex, stemming from the 2002 ECJ judgement on European air transport policy, discussed here , but with the emergence of an EU external aviation policy, the Commission has established its presence in the policy field.

What this means is that Member States are no longer free agents when it comes to negotiating aviation agreements with third countries. The Commission has a right to be involved and, in certain areas – such as aviation safety – it has exclusive competence. Effectively, without the willing cooperation of the Commission, there can be no deals.

In its own inept way, however, the Mail reports that Grayling's move attempts to circumvent the European Commission and "will anger Brussels officials", as if it was a credible option. Yet it could so easily have pulled in any number of experts to tell its readers that Grayling is chasing after unicorns. As always, the media ducks the issue.

At least, though, we get the intelligence that aviation is to feature in the next tranche of "technical notices", where there will be an acknowledgement that there is a "theoretical possibility" that UK-registered civil aircraft will not be able to take off and land on the continent after 29 March. It is also accepted that flights from mainland Europe would also be blocked from landing in the UK unless a new agreement is made to replace the single market for aviation.

But then we are served up with the usual mantra: ministers "have dismissed the idea that European air traffic will stop if there is no deal". They have, we are told, already negotiated a raft of deals with non-EU countries to ensure flights can continue to those countries after Brexit. And, to that effect, a UK agreement with the US and Canada, to replace the EU-US Open Skies agreement, is expected to be reached imminently.

That notwithstanding, it will take more than the Open Skies agreement to keep UK aircraft flying to North America. There are also the safety issues to deal with, requiring complex bilateral agreements on safety in aviation (BASA), for which no plans have been announced.

As to ministers glib assurances that the status quo on European air traffic will continue after a "no deal" Brexit, the only certainty here is that, unless the UK is able to secure a separate aviation deal before we withdraw, aircraft will be grounded.

As to the possibilities of a deal, enter from stage left Sir Ivan Rogers who yesterday spoke at the Annual Gala Dinner of the British Irish Chambers of Commerce in Dublin.

There, he criticised British advocates of a no-deal Brexit who argue that "European self-interest will be the deus ex machina which delivers a whole set of legal mini deals ensuring that it's all right on the night". Rogers's response to that was straightforward and to the point. "This is, I fear, simply delusional", he said.

Stripping away many of the comforting delusions attendant on Brexit, Sir Ivan's main point was that the UK is potentially facing the worst domestic political turmoil since the Second World War over Brexit and a severe political crisis with the EU.

Addressing the negotiators on both sides, he complained that they were misreading each other's real incentives and political constraints, which was preventing them from finding any sort of landing zone for a deal, however provisional. This, he said, created the risk of an accidental no-deal.

With that,. he referred to the government's recent "technical notices" which showed there was no World Trade Organisation "rule book" to fall back on. Advocates of a "no deal" Brexit, he claimed, know that it would "bring several key sectors of the economy to a halt".

Interestingly, his idea of a solution was for a joint compromise. On the one hand, Teresa May would accept the Brussels version of the Irish "backstop" while Brussels would offer a political declaration which would suggest a trade deal for the whole UK which would obviate the need for such a backstop ever to come into force.

Sir Ivan takes the view that an EU response [to Chequers] which said, "let’s deal solely with the withdrawal issues and keep the political declaration as vague, aspirational and ambiguous as possible" would merely set up further conflict and mutual alienation down the line.

This had the potential to deepen the fracture with the UK, he said, as we may have no choice but to take an economic course which will turn cross-Channel relations more adversarial.

However, that situation may already have arrived. Yesterday in Brussels, Dominic Raab accused Michel Barnier of misrepresenting the Chequers plan and said that EU objections were "overblown". He denied that the proposals would damage the single market or give British businesses an unfair competitive advantage. Barnier's claims, Raab asserted, "had no merit and were wrong on points of fact".

Perhaps it's just as well that our government has formalised its "no deal" contingency planning, now under the codename Operation Yellowhammer - revealed after John Glen, a Treasury Minister, inadvertently allowed the briefing note he was carrying to be photographed.

The note also tells us that government departments are not able to call upon extra funding as their first resort. Instead, their "first call" for funding no deal plans must be through "internal reprioritisation", transferring funding from existing programmes.

Nevertheless, concerns that the government has not allocated sufficient resources to fund "no deal" preparations must be tempered by the reality that, in many instances, there is very little that can be done. For instance, no amount of money will be able to get aircraft back in the sky in the event of us departing without the necessary arrangements.

More significantly, the government is now involving the Civil Contingencies Secretariat (CCS), asking it to assess the UK's degree of readiness in the event of a "no deal". Established in July 2001, after the fuel protests and the foot and mouth epidemic, the CCS's task is to manage the government's Resilience Capabilities Programme (RCP).

This programme is designed to improve government understanding of what capabilities are needed to deal with the consequences of emergencies, "regardless of whether those emergencies are caused by accidents, natural hazards or man-made threats". The programme then coordinates cross-government efforts to build capabilities.

Here, we have the first indication that some heavy weight planning for Brexit is being carried out and that the government is prepared to treat Brexit as an "emergency". This could pave the way to bring into force the Civil Contingencies Act 2004, which gives minister a wide range of additional powers to deal with the consequences of emergencies.

Planning, more than anything, is what is needed at this stage, together with a comprehensive assessment of the scale of the threat. If this unit does its work properly, it may bring home to ministers what precisely they are dealing with. It may then serve to deter Mrs May from going down that route.

The very fact that a "no deal" Brexit is being treated as a potential emergency must surely focus minds and strip away some of the delusions harboured by ministers. Whether this can be translated into political agreement in Brussels is, of course, another matter.

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