Richard North, 02/01/2021  

As expected, in the immediate aftermath of TransEnd, the media is hunting down border stories - no doubt disappointed not to see massive queues of lorries at Dover and other ports. But they tend to win either way. If there are queues, they get their story but since there are none, they still get one.

Thus, the Independent revels in the headline: "Britain leaves EU single market with a whimper rather than a bang as chaos yet to materialise". The paper is, no doubt, gearing up for a change of pace, as it also tells us that severe border chaos has yet to materialise.

The BBC, for once, has come up with a slightly more entertaining slant, reporting on the one hand that the first goods have crossed the Irish Sea trade border while, on the other hand, recording the Northern Ireland secretary claiming that there is no "Irish Sea Border".

There seems to be no end to the delusional statements to which Johnson's ministers are prepared to lend their names, this one from the same minister who conceded that the Internal Market Bill breached the Irish Protocol in a "specific and limited" way.

But, I suppose, when you have a clown for a prime minister, anything goes. Johnson's latest contribution to the sum of human happiness is his egregious piece in the Telegraph. The "essence of this treaty", he writes, is that "it provides certainty for UK business and industry, because it means that we can continue to trade freely – with zero tariffs and zero quotas – with the EU".

He then asserts that many people used to insist that you "couldn't have unfettered free trade with the EU … without conforming to EU laws", claiming that they were telling us: "You couldn’t have your cake and eat it". He then adds with a characteristic flourish: "Maybe it would be unduly provocative to say that this is a cake-ist treaty; but it is certainly from the patisserie department".

Thus, the more times Johnson opens his mouth, or pens his views on the TCA, the more one begins to appreciate his profound ignorance of the nature of this treaty. It becomes more and more clear that he sees "unfettered free trade" in one-dimensional terms of "zero tariffs and zero quotas". Non-tariff barriers simply do not feature in his simplistic vision of international trade – hence his tendency to deny their existence.

One is reminded, however, of his infamous comments back in July 2019 on Kippers, where he complained of "Brussels bureaucrats who have insisted that each kipper must be accompanied by … a plastic ice pillow", condemning it as "pointless, expensive, environmentally damaging, 'elf and safety".

If he had been right about the requirement being "pointless" then, when he waved the kipper aloft, he would have had in his hands the perfect example of a non-tariff barrier – a costly provision which reduced the competitiveness of a trader trying to access an export market.

Given that he pledged to remove precisely this sort of "bureaucracy", one might have thought that Johnson would have asked his officials to assess whether the TCA would have any impact on such provisions. But, of course, insofar as the SPS rules continue to apply to UK produce exported to EU Member States, the treaty actually maintains barriers to "unfettered free trade".

In this context, there is of course no such thing as "unfettered free trade". Much international trade (and, indeed, domestic trade) is highly regulated and, in the interests of consumer safety (amongst other things), we wouldn't have it any other way.

That Johnson fails to make the link does, to me, confirm that the man is actually quite thick. He blunders through life with a few stock routines which he uses to bolster his image, but he does not learn from his many experiences. Quite obviously, he fails to make conceptual links. This is not a sign of high intelligence.

All this, though, is at a highly superficial level and if Johnson's understanding doesn't even extend this far, there is little chance that he has begun to understand the complexities of the TCA, and precisely to what the UK has been committed.

Elsewhere, I have commented on the treaty's reliance on a wide swathe of international standards brought to us by a range of intergovernmental treaty organisations. By this means, Johnson is able to claim that we are no longer bound by EU law, even though we are tied to exactly the same provisions, albeit by a different route.

However, the fact that these are intergovernmental provisions ostensibly gives the UK much more flexibility – inasmuch as there are often opt-outs in these international standards, where states can choose whether they apply them.

But, as I explained in my earlier piece, if we do not use these standards, we are bound by the TCA to explain the reasons why such standards were judged inappropriate or ineffective for the objective pursued, and provide the scientific or technical evidence on which that assessment was based.

But it gets worse. If we go back into the TCA we find that the requirement to explain is given considerable "teeth" in Part Six on "dispute settlement".

The point about many intergovernmental agreements is that the dispute procedures are often slow, cumbersome and weak – notoriously so in the case of the WTO dispute procedures.

What the TCA does, though, is introduce its own dispute procedures, which are far more effective and rapid – and with considerable teeth, in terms of the sanctions which can be applied. It then allows these procedures to be applied to the external agreements in place of the inbuilt procedures.

Thus, in the event – for example – of the UK failing (or refusing) to apply a Codex food standard, mandated by the WTO SPS Agreement, the EU could by-pass the WTO procedures and choose to initiate the TCA procedures, thereby preventing the UK from resorting to the weaker measures (See Art INST 12. 4).

Given that the "compliance measures" enable the EU to apply quite powerful remedies – to the extent of reimposing tariffs and like measures - the net effect of these provisions is to render mandatory the implementation of many of the technical standards promulgated by the international bodies to which the TCA refers.

Interestingly, over the Christmas break, Politico had Jonathan Powell - Tony Blair's former chief of staff – give five reasons why the UK had failed in the trade talks.

Having spent the last 40 years involved in international negotiations of one sort or another, then asserting that he has "never seen a British government perform worse than they did in the four years of negotiations" that concluded with the Christmas Eve agreement, Powell nevertheless does not pick up on the singular fact that we have been taken to the cleaners on the adoption of EU law.

By roundabout means, the EU has been able to impose the bulk of its regulatory acquis on the UK, disguising it under the cloak of intergovernmental provisions and, while there is no jurisdiction for the ECJ, the dispute and compliance provisions are every bit as powerful.

In terms of independence, therefore, we are very little further forward. Thus, while we will be entertained over the next few weeks by media "lorry watchers", the treaty re-enacting major chunks of EU membership obligations will pass them by unnoticed.

Distantly, I recall William Hague coining the fatuous slogan, "In Europe but not ruled by Europe". Now, we could perhaps suggest the new variant: "Not in Europe but ruled by Europe". The idea could be infectious.

Also published on Turbulent Times.

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