Richard North, 01/10/2018  

Jeremy Hunt's speech to the Tory conference yesterday was particularly disturbing not just for the choice of words but for its illustration of the foreign secretary's lack of grasp of the issues.

If Mr Hunt really believes that the EU thinks that the way to "keep the club together" is to "punish a member who leaves, not just with economic disruption but even by breaking up the United Kingdom with a border down the Irish Sea", then we have a minister who is so far detached from reality that he is probably beyond salvation.

On one level, it would be possible to dismiss the speech as crass Tory dog-whistling, telling the conference faithful what they wanted to hear. That is certainly a context for the assertion that, "The EU was set up to protect freedom. It was the Soviet Union that stopped people leaving".

But then Hunt went on to say that: "The lesson from history is clear: if you turn the EU club into a prison, the desire to get out won't diminish it will grow, and we won’t be the only prisoner that will want to escape". Taken together, these phrases dragged the speech into a different dimension.

To appreciate this, all you have to do is look at Article 50 – and recall that once a Member State notifies the European Council of its intention to leave, withdrawal is automatic on the second anniversary of the notification – unless all the parties agree otherwise.

In any literal sense, therefore, it is simply not sensible to assert that the EU is a prison. When a Member asks to leave, the doors automatically spring open after an elapse of time needed to discuss exit arrangements, and the UK is free to walk away – with no conditions other than those to which it agrees.

It would be logical and acceptable to make the "prison" argument if Article 50 did not exist, but it was precisely because the "colleagues" did not wish to have their political union regarded as a "prison of nations" that the Article was introduced. To argue now that the EU is a prison is perverse.

But what Hunt is also doing is indulging in what amounts to blame transference, evidenced by his complaint that the EU intends to "punish a member who leaves, not just with economic disruption but even by breaking up the United Kingdom with a border down the Irish Sea".

Taking the issue of "economic disruption", this puts Hunt in a fantasy world of his own making. He needs to realise that the UK is leaving the EU – it is walking away from the non-prison. And no-one sensible will disagree that the consequence of that departure will be – as a matter of inevitability – an amount of economic disruption. The only variable is how much.

As to "breaking up the United Kingdom with a border down the Irish Sea", it is simply not correct to present the EU as the progenitor of any such effect. By seeking to make this the responsibility of the EU, Hunt is demonstrating that he simply doesn't understand what is going on.

This he has in common with many others in the Conservative Party, who simply do not seem to be able to cope with the idea that, after Brexit, the border between the Irish Republic and Northern Ireland becomes part of the external border to the European Union.

When you think about this – clearly – there should be no questions arising out of this new status. Border controls should automatically apply, the consequences of which should be that there will be a "hard" border, with control posts at every major crossing.

On that basis, the very fact that the EU is prepared to work with the UK to devise an exception to its own rules, allowing the free flow of goods across the border, is a major concession. If it wanted to be bloody-minded, it could refuse to discuss the issue, and remind the Irish Government of its obligations under the Union Customs Code and the requirements to impose border checks.

For the EU to waive checks at this border, however, does not relieve it of the obligation to protect the integrity of the Single Market, without opening itself to claims of a breach of WTO anti-discrimination rules. Thus, in acceding to the need for a soft Irish border, the EU is presenting itself with technical and legal problems which it could have avoided had it taken a more rigorous, inflexible stance.

Unfortunately, if the EU removes controls at the Irish border, that opens a potential back door into the Single Market for goods and services from the UK. They can be routed via Northern Ireland into the Irish Republic, whence they will be deemed to be freely circulating within an EU Member State. From there, they can be exported without any further controls to any other Member State.

Equally, if the UK decides to have a relaxed import regime with the rest of the world, goods (and to an extent services) flooding into the UK can then be re-exported to the EU, via Northern Ireland and the land border with the Republic, circumventing any of the controls that would apply if they were exported directly from their originating countries.

What the state of play is at present is an irrelevance. If there is a soft border on the island, and no controls on goods (or services) flowing from the mainland UK to Northern Ireland, then the EU is allowing a huge gap in its trade defence system. Obviously, this cannot be tolerated.

Looking at the problem from a technical perspective, there are only two realistic solutions. The first is to impose border controls on goods crossing over from the mainland into Northern Ireland, requiring full conformity with EU law before being allowed entry. This is precisely the option to which the UK government is objecting.

The alternative is for the UK as a whole to maintain full regulatory alignment with the EU, imposing controls on its own borders and preventing the entry of goods from third countries unless they also conformed with EU law. To all intents and purposes, that would mean the UK continuing to participate in the Single Market – something Mrs May has said she will not do.

As it stands, this leaves the EU in an impossible position. But, recognising that, the UK have been offering a variety of "fixes", with the standing proposal amounting to the Chequers plan. This accepts regulatory alignment for a limited range of products – but not services – confined to those products which are currently trafficked across the internal border.

For entirely understandable reasons, the EU is uncomfortable with this arrangement. To add to this, it sees itself as being asked to permit "frictionless" trade with the UK - a privilege given only to fully-fledged Member States (and Efta/EEA states, with some modifications), effectively allowing full participation in the Single Market without the UK complying fully with the rules.

This, the EU cannot do. It is not a question of "punishing" the UK. Rather, the UK cannot be given a better deal than Member States as a "reward" for leaving. Jeremey Hunt has got it arse about face. This is not keeping the club together by punishing a member who leaves. It is a refusal to reward a leaver with a better deal than the members enjoy. To do otherwise would most certainly weaken the "club".

This is where we have been right from the beginning of the negotiations and Chequers does not bring us anywhere near the finishing line. For a deal to be acceptable, Mrs May will have to ensure that the UK remains in full regulatory alignment with the EU.

Additionally, the UK will have to participate in the regulatory "ecosystem", with its provisions for joint market surveillance, supervision, enforcement and dispute settlement. This is not negotiable. Regulatory conformity alone is not sufficient to ensure frictionless. Furthermore, the UK will have to satisfy the EU that it has dynamic mechanisms for ensuring continued regulatory alignment. Divergence simply will not be permitted.

Now, when one sets this out in this fashion, it becomes embarrassingly evident how far behind the curve Mr Hunt is. He can blather all he likes about "Dunkirk spirit", but this is not about standing firm against an enemy which, when push came to shove, didn't have the military resource to invade this island.

This is about the technical minutiae of trade rules, where we have to interface with one of the most sophisticated and advanced trading blocs in the world. Standing on the cliffs of Dover and waving one's fist at the non-existent invading hordes doesn't cut it. The mental image is bizarre.

But this is the current foreign secretary who is saying: "… if the only way to deal with the UK leaving is to try to force its break-up, as someone much more distinguished than me once said, the answer is 'No No No'!".

When he then adds: "Let me say one more thing about these talks. Never mistake British politeness for British weakness because, if you put a country like Britain in a corner, we don't crumble – we fight", he does not come over as a heroic or even a resolute figure. This is a silly little man, cutting an absurd figure.

Really, if Hunt – to say nothing of prime minister May – can't do better than this, then we are looking down the nose of a "no deal" scenario. The EU will have no option but to walk away in despair, unable to negotiate with a nation represented by politicians who are so inept.

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