Brexit: the fourth division

13/09/2018

Four recent examples of groups trying to come to terms with the complexities of EU law and Brexit indicate how primitive is the collective understanding, suggesting that in matters relating to the EU, British players are stuck firmly in the fourth division. The first example comes with a Sky News broadcast on Tuesday on pilot's licenses.

As it happens, I've been writing about aviation issues in relation to UK withdrawal from the EU since July 2014. I wrote an index piece in January 2017 and specifically referred to the loss of recognition of UK-issued pilots' licenses in November 2017. Then, in April 2018, the European Commission published its Notice to Stakeholders pointing out specifically what we'd already written about, confirming that UK-issued licenses would no longer be recognised in the EU in the event of a "no deal" Brexit.

Yet, despite the information being in the public domain all this time, it has taken until now for Sky News to "discover" what we already knew. Via Faisal Islam, political editor, and Zach Brown, political producer, in their self-important way of which the legacy media are so fond, the news channel "reveals" this information, not from the publicly-accessible Commission website but from a "leaked Civil Aviation Authority document".

Needless to say, this intrepid duo don't really understand the detail of what they are reporting, nor the devastating impact where upwards of 35,000 license-holders will no longer be able to fly aircraft registered by EU Member States, nor fly any aircraft at all in EU Member State airspace.

Instead, they launch off at a tangent, wrongly stating that licenses would have to be reissued by the UK's Civil Aviation Authority "which would cost millions" – making this the thrust of their story – with the unstated implication that the reissued licenses would be recognised by the EU.

This error paved the way for a huffy "rebuttal" issued by the CAA, claiming: "It is misleading for Sky News to say that pilots would need to renew their pilot's licence in a 'no-deal' Brexit scenario".

The CAA goes on to say that both commercial and private UK pilot licences would remain valid for use on UK-registered aircraft "as the United Kingdom is a signatory to the International Civil Aviation Organisation (ICAO) Chicago Convention". Our licences, they say, "are internationally recognised - including by the European Aviation Safety Agency (EASA) - both now and after 29 March 2019".

These weasel words, however, omit some important information. Firstly, as I've already pointed out, while (most) holders of UK-issued licences are currently permitted to fly aircraft registered anywhere in the EU, after Brexit they will no longer be allowed to do so. Secondly, no UK-license holder may fly in EU airspace and, because recognition with other countries is often agreed via the EU, these pilots will be excluded from most territorial airspace, including that of the United States.

Compounding the confusion and misinformation, we then get other media stories, highlighting the "rebuttal", including the Mail which runs with: "British aviation chiefs deny report that the UK will have to spend millions of pounds reissuing thousands of pilot licences after Brexit if the country crashes out of the EU without a deal".

Thus we see illustrated the almost complete inability of the legacy media to report coherently on Brexit, leaving industry up in the air as the uncertainties multiply and the time gets shorter.

But if we go higher up the tree, so to speak, into the upper echelons of government, things are no better. Only recently, we saw an extraordinary report that transport secretary Chris Grayling was 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 could continue uninterrupted.

My immediate response was that Member States no longer had the freedom to negotiate bilateral deals with third countries, making one wonder why on earth Grayling thought such deals were possible. Why, for instance, hadn't his own civil servants warned against such an ill-advised move?

Within days of this second example of the fourth division at work, however, we learn that Barnier has "reprimanded" Dominic Raab over this action, whence we also learned that Grayling had been told less than two weeks ago by the European Commission's "most senior trade official, Violeta Bulc", that "without a deal this autumn, there would be no other agreements made to protect the UK economy".

On the ball as always, Sky News then moved in to "reveal" that Grayling had sent the letters - six days after the same news had been reported by the Mail.

Still we have not plumbed the depths. Such inept moves – from politicians and media - are easily matched by the ERG proposals for the Brexit settlement of Irish border question, published at a press conference yesterday, with David Davis and Jacob Rees-Mogg in the chair, supported by former Northern Ireland Secretary Owen Paterson. It provides our third example of the fourth division at work.

Quickly dismissed by the Irish government's Brexit committee chairman, Neale Richmond, as "simplistic and ignorant", the ERG believe they can solve the issue of animal and animal product export to the EU by agreeing "equivalence" between UK and EU regulations, with "conformity assessment" based on "mutual trust".

By this means, they argue that we could sell such goods to the EU (via the Irish border) without having to submit for veterinary inspection at Border Inspection Posts (BIPs), the need for which makes a hard border inevitable.

As Michel Barnier has consistently pointed out though, the only way such frictionless trade could happen is within the context of a strict treaty framework which encompasses the full "regulatory ecosystem". This goes far beyond mere "equivalence", which rests on allowing differences between laws as long as the regulatory objectives are the same.

Before even the ERG press conference had been held, Jean-Claude Juncker had delivered his State of the Union address in Strasbourg, reminding the British Government that someone who leaves the Union cannot be in the same privileged position as a Member State. "If you leave the Union", he said, "you are of course no longer part of our single market, and certainly not only in the parts of it you choose".

To enable us to avoid BIPs, the UK would have to commit to dynamic regulatory conformity – where we not only adopt existing EU law but future law as well - common enforcement systems and strategies, common surveillance system and data sharing, technical and legal supervision from the Commission and European Food Safety Agency, and judicial oversight.

Basically, the only countries outside the EU which enjoy such frictionless trade are Efta/EEA states and Switzerland. No other country in the world is exempted from the BIP/official controls regime. Not even New Zealand, which has special arrangements with the EU, is able to avoid directing products to BIPs before they can be even submitted for customs clearance.

No one with the slightest understanding of how the EU "official control" system works would even think of proposing a madcap scheme where goods are allowed through on the tenuous grounds of regulatory equivalence. Their proposal firmly cements the ERG as members of the fourth division.

Yet, for all that, UK produce – initially, at least – will not even cross the border. Until the British Government has successfully convinced the EU to list the UK as an approved exporter, with separate entries required for each range of products, all exports of animals and products of animal origin will be prohibited. This is not an academic issue, but is clearly stated in relevant EU law and set out in a European Commission Notice to Stakeholders published on 1 February of this year.

Despite this, the very real prospect of the export trade collapsing has been almost completely ignored, whether by select committee, the Commons Library or, in the latest example, by the National Audit Office (NAO). This puts our research and information capability very much in the fourth division, marked down by the inability to process important facts, even when they are easily accessible.

Across the board, encompassing politics, the media, industry, think tanks and academia, the collective failure is creating a perfect storm in terms of the information deficit. Add to that an indifferent and untutored voting population, many of whom are more concerned to have their prejudices reinforced than they are to acquire information, and we have a nation which is largely unable to cope with the challenges of Brexit.

It is said that we get the governments we deserve. Even more worrying, there is an increasing risk that we might get the Brexit we deserve. We've put ourselves in the fourth division and there we will remain.