Richard North, 22/09/2018  

With virtually every national newspaper yesterday referring to Mrs May's "humiliation" in Salzburg, it is perhaps significant that the BBC's political editor chose to describe her experience at the hands of the EU leaders as an "embarrassment".

If anything, it illustrates the flexibility of political language, where words are not only used in a descriptive sense but also to define the stance of their authors. But what the use of the word "embarrassment" doesn't do is convey with any accuracy the nature of what transpired at the informal European Council.

Had it done so, one might have thought that Mrs May's self-indulgent statement would have been necessary. After all, the woman routinely embarrasses herself – as with her dancing displays in Africa – and we didn't have the BBC called in to hear statements each time she does so.

On balance, therefore, I think we need to stick with "humiliation", but I would stop short at suggesting that this was something visited on her by the "EU leaders". This is something she inflicted on herself by going to Salzburg and insisting against all logic that her Chequers plan was "the only serious and credible proposal on the table".

The only thing remarkable about the action of the EU-27 was the timing. That they would publicly reject the Chequers plan at the Salzburg European Council simply wasn't expected. But one should recall that it has only been in deference to Mrs May's political difficulties that they didn't reject it out of hand in July. The only real criticism one can have is that they took so long to do the inevitable.

That said, if the EU – or, more specifically, Michel Barnier – is to be criticised, it is in blurring the issues between the Single Market and the Customs Union and his insistence that the only way frictionless trade can be secured is through a combination of the internal market and the customs union.

We saw that, by way of an example, in November 2017 when Mr Barnier pointed out that the arrangement for Norway "still entails a system of procedures and customs controls, among other things in order to check the preferential rules of origin".

Technically, of course, he is right about Norway's rules of origin within the framework of the EEA Agreement – as set out in Protocol 4 to the Agreement.

But implementation of that Protocol does not require border checks. The system is based on a system of certificates proving origin and verification checks are undertaken by the customs authorities of the exporting countries, usually by auditing the certificate holders' processes at their places of business.

Bearing in mind that the EEA Agreement is an adaptive framework, and includes provision for the elimination of customs duties on imports and exports, and any charges having equivalent effect (Article 10), there is actually no need for Efta/EEA states to sign up to a customs agreement. There is nothing to be gained from it, in terms of improving the cross-border flow of goods and, as a result, none of the Efta states are members of a customs union with the EU.

This should be known to Mrs May and her negotiating team. The EEA Agreement, with specific adaptations to suit the specific needs of the UK, is a means by which we can get as close to frictionless trade with the EU as makes no difference. Such elements which might be "sticky" can be dealt with administratively – or be subject to separate agreements – and need not cause significant barriers to trade.

For Mrs May, therefore, to assert that the first (of two) options offered to the UK by the EU "would involve the UK staying in the European Economic Area and a customs union with the EU" is, by even the kindest measure, disingenuous. The less generous amongst us might consider it downright dishonest.

But where there can be no argument about her dishonesty is in her follow-up. "In plain English", Mrs May said, "this would mean we'd still have to abide by all the EU rules, uncontrolled immigration from the EU would continue and we couldn't do the trade deals we want with other countries".

Taking the first claim, it has long been established that continued EEA membership would involve accepting roughly 27 percent of the EU's acquis, most of which comprising technical rules instigated by global bodies that we would have to implement anyway – inside or outside the EU.

As to "uncontrolled immigration", even within the EU, that description does not apply. Within the framework of EU law, there are controls built-in – many of which the UK did not properly (or at all) implement. But, within the EEA, there are the Article 112 Safeguard Measures, which can be invoked unilaterally, affording some relief to freedom of movement measures.

Then there is also the option of following in the wake of Liechtenstein (and Switzerland, had it remained in the EEA) of brokering a country-specific amendment to the Agreement, allowing freedom of movement provisions to be tailored to the specific need of the UK, allowing a return of some of the control we are said to lack.

As to doing trade deals with other countries, even within a customs union there is no general restriction. Within the EU, that comes with the Common Commercial Policy. But the issue is far more complex than Mrs May would allow.

If we are going to enjoy continued access to the EU's trade deals, then there are going to be some limits on our ability to take independent action. And once we start making separate deals – as Efta/EEA states are free to do – that might have implications for our "frictionless" access to the EU – see "rules of origin", passim.

And, just to call Mrs May a liar, yesterday the three Efta/EEA states signed a Mutual Recognition Agreement (on conformity assessment) with Australia. Far from prohibiting such deals, MRAs are built-in to the EEA Agreement (Protocol 12).

Nothing in the Efta/EEA option, therefore, justifies Mrs May's claims or her rejection of the option. Her arguments are spurious, not supported by the facts on the ground. Furthermore, applied to the Northern Ireland border, as part of the overall Brexit package, that would obviate the need for a hard border.

As for the second option mentioned by Mrs May - a basic free trade agreement for Great Britain – she asserts that this would introduce checks at the Great Britain/EU border. And with this, I would not disagree.

But, in rejecting the first option (which she did in her Lancaster House speech), Mrs May has shut down the only workable option available in the short- to medium-term. This has forced her to engineer what she calls "a third option for our future economic relationship" – the so-called Chequers plan.

This, she says, is based on the frictionless trade in goods and it will "avoid a hard border between Ireland and Northern Ireland, while respecting the referendum result and the integrity of the United Kingdom".

In reality, it will do none of these things. More specifically, it demands that the EU should allow the UK to cherry-pick from the Single Market and, while the UK will not be part of the Single Market regulatory ecosystem, it is demanding all the access privileges that go with full membership.

Bizarrely, though, Mrs May complains that, "at this late stage in the negotiations, it is not acceptable to simply reject the other side’s proposals without a detailed explanation and counter proposals".

Yet, as Mrs Merkel said in Salzburg: "No-one can belong to the single market if they are not part of the single market", while Mr Barnier has explained many times the role of the regulatory ecosystem in the functioning of the Single Market.

Not in any conceivable way can the Chequers plan measure up to the requirements for securing "frictionless" access to the markets of the EU Member States, and if Mrs May doesn't already realise this, it was up to her senior ministers and her official team to tell her. That they have failed to impress on her the inadequacies of her plan suggests that they have a lot to answer for.

Then to demand counter-proposals from the EU is utterly absurd. It is not for the EU to decide for the UK what relationship we should secure. This is for our own government to decide, in consultation with the Parliament and the people.

What the EU should be doing is setting the parameters within which any arrangement must fit, for it to be acceptable. But that is precisely what it has already done. All Mrs May needed to do was listen to M. Barnier and any one of his innumerable speeches.

Thus, if Mrs May, "victim" of what is now being styled as an "ambush", had no idea that it was coming, that simply represents another of her failures. In Salzburg, she was at the back of the line but back in London, she is making a complete fool of herself. "We need serious engagement", she says. One of these days, she needs to try it.

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