Brexit: not for public consumption

26/10/2017

A busy day in the Commons' select committees yesterday had David Davis in one room speaking to the Brexit committee and Sir Ivan Rogers in another, communing with the Treasury committee. They might as well have been on different planets.

Mr Davis, for instance, blithely informed his committee that a trade deal with the EU could be agreed within 12 months, and certainly before March 2019. From the context, it was evident that the Brexit Secretary was referring to the full Monty – the "deep and special partnership" that Mrs May had in mind, leaving the way clear for her "implementation period" to take effect.

Sir Ivan, on the other hand sternly informed his MPs that trade deals were "inordinately complex, legal, lengthy documents. They often run to thousands of pages". Warming to his theme, he added: "There is no way that an EU-UK trade deal as comprehensive as the one I think we'll want to strike will be done in under a couple of thousand pages. Those couple of thousand pages are not going to be legally baked and done by October 2018. No chance".

The reference to October 2018 was made to take account of the six-month period for ratification the Article 50 settlement, if it is reached. Thus, in effect, all negotiations have to be concluded by then.

Even on this, Davis and Rogers couldn't agree. Davis thought there would be a withdrawal agreement and a new trade agreement. However, he thought they might not be finalised until the end of March 2019.

We were regaled with the history of EU negotiations. "It's no secret", he said, "that the way the union makes its decision tends to be at the 59th minute of the 11th hour of the 11th day and so on, and that is precisely what I would expect to happen". It will be a lot of pressure, very high stress, very exciting for everybody watching.

As to ratification, it seems Mr Davis expects this might run on past Brexit day, but he didn't elaborate on the consequences of this. The Secretary of State doesn't do detail.

This made for a marked contrast with Sir Ivan's evidence. This is a man who does do detail and seems to revel in it – more than the MPs were capable of absorbing, I suspect. They kept trying to shut him up and "move on".

In an interesting session, where Rogers was at his most interesting was in his discussion on the "no deal" scenario, which ran through the discourse like lettering through Blackpool rock.

Looking at the special circumstances of the EU talks, Sir Ivan ventured that the only time when you should walk out is when the status quo is better than the deal on the table. But in this case. the status quo is not an option – it's not on offer. It's not the world we inhabit. A "no deal", therefore, is a situation without a deal. It is a situation where "you jump into the void". There is no law applicable within the space. We become a third country with no more rights of access than Venezuela or the Yemen.

Before you go for this option, Sit Ivan said, "you have to know what no deal amounts to – is that a tolerable world to inhabit? You have to go through sector by sector, area by area, and have to know exactly how it will affect each sector and area. You have to know in detail the implications in each sector/area and work through the consequences".

British press coverage had, he said, been "rather misleading" on the consequences of "no deal". People were writing it endlessly and rightly about which bits of Kent you'd have to concrete over, and what the lorry parks would be like and how would you manage customs arrangements in absence of a deal. But, he added:

That's fine. What's the other side of the Channel going to do? There are not enough Border Inspection Posts on the other side of the Channel to deal with British goods and British meat exports or British food exports. What's going to happen and in the absence of a deal have the French, have the Belgians, have the Dutch any incentive to sort that problem or are they have an incentive to keep us stewing?

In the area of data protection, do they have any incentive ultimately to cobble together some agreement at the last minute in order to keep data flows or do they have an incentive to maximise the flow of UK business that has to shift to the continent in order to assure. That's what I mean. I'm very pro having a contingency plan but any contingency plan has to be brutally road-tested against the reality of what the other side of the Channel would do in circumstances of a breakdown in talks.

When one hapless MP suggested that the proposition didn't really exist, Rogers immediately declared that: "I don't think "no deal" doesn't exist. I think it's so dire to contemplate that people, as soon as they talk about 'no deal' say 'in practice there would be lots of mini-deals'".

But then, he said, if you look at "no deal" literature, I would say that everybody talking about "no deal" doesn't mean "no deal". They mean, "when we get to the wire, there would be a succession of mini-deals that we would be able to negotiate and that the other side would be willing to negotiate".

This, in theory, would assure us of very significant continuity in all the areas that we would be most concerned about, ranging from electricity interconnectors to financial services to data protection.

Thus, said Rogers, "the proposition that you really get from the people advocating 'no deal' is not 'no deal'. 'No deal' does not mean 'no deal', if I can coin a phrase. I have not seen anybody actually advocate no deal. They know that jumping into a legal void without any legal provisions in any of these areas is potentially very damaging".

By coincidence, that is precisely the territory covered by my previous post, where the disingenuous Lee Rotherham wants to assert that it is - as Sir Ivan suggests – effectively a "no-deal deal".

The thing here is that I don't have any trouble with understanding that concept. What I object to is the butchery of the English language. In that same way that "Brexit means Brexit", the term "no deal" should mean what it says: no deal. If its advocates are looking for a different way of coming to a working arrangement with the EU, by a multiplicity of "mini deals", then they should say so. Perhaps they should call it the "mini-deal scenario".

Anyhow, once Sir Ivan had outed them, he told his committee that he was "questioning just how valid" the mini-deal proposition was, and "how viable it is". The basis – of which we are very well aware – is that: "People … think it's so dire (the 'no deal scenario') it obviously wouldn't happen and sort of think something would happen". By this means, we get the "no-deal deal" or what Davis, in his session, called a "bare bones deal".

Being slightly more charitable than I would have been (alright, a lot more charitable), Sir Ivan said he didn't want to be "unfair to 'no dealer' rhetoric", but "… people are always coming back to say that obviously they wouldn't allow that to happen as they would be damaging themselves either more than us or as much as us".

Back in the real world, the "legal reality", Sir Ivan gravely informed us that the EU is "a very complex legal construct" and "we'd be leaving without an agreement". We would, therefore, "be jumping into a legal void and then you're reliant on the other 27's contingency plan and what they put in their contingency plans".

To put clothes on this, Sir Ivan chose "the famous aviation example" to illustrate what actually happens. In blunt terms, he said:

With no agreement in place, our air carriers lose the right to operate EU-UK air services. Any flights between the EU and UK cease to operate. They would cease to operate. UK air carriers that had been operating within the Single Market pre-Brexit would lose their EU air traffic rights. And to keep operating flights within the EU and to continue to qualify as EU air carriers, which is the precondition to operate intra-EU air services, those companies would need to relocate their principle place of business … into the EU-27.

This isn't theoretical. Air companies were coming and talking to me about that in 2015-2016 immediately after the referendum. CEOs were coming to talk to me. The UK would fall out of 50 aviation agreements between the EU and third countries including the EU-US "open skies" agreement under which UK-US air traffic currently accounts for about 40 percent of EU-US air traffic. So we would need to renegotiate bilateral agreements with third countries as a replacement.

Addressing those who say that we could revive the old bilateral air service agreements with the individual member states, Rogers also has an answer. The old agreements, he says, are restrictive and outdated and not fit for purpose. In any case, Rogers thinks it very improbable that member states would step back in.

In fact, they could not. Since the ECJ's open skies judgements of 5 November 2002, international air services agreements have been an exclusive EU competence, with deals negotiated by the Commission.

Had the MPs not been so skittish, Rogers would have given them another example. He offered them two, but didn't seem interested. And there has been no media reaction of any significance to his evidence.

Earlier in the day, though, Marcus Leroux, The Times trade correspondent had tweeted about a conference in London discussing the effects of Brexit on the Channel ports. Leroux noted that 25 percent of trade with the EU went through the Channel Tunnel. Euro Tunnel, he said, would need to build inspection posts for meat and plant products.

He then cited John Keefe, Euro Tunnel's director of public affairs. He said: "Essentially we will need a laboratory to conduct testing. The lab itself will need land. It's a sophisticated structure. It's got to be highly secure, so there's a planning process, a building process and a procurement process to go through. That's a several year process in normal events".

I'm not sure that Keefe has the measure of what an inspection post is really about. But never mind. His comments gained about as much publicity as Ivan Rogers and his comments on inspection posts – i.e., none. The media is obsessed about whether MPs get a vote on the Brexit deal. They haven't time for such details.

It's the details, though, that are going to scupper Brexit. The potential for serious damage is real and, as Sir Ivan explained, the UK ending up with a "no deal" scenario is a real possibility. But the media isn't interested and neither are the MPs. So people mustn't be given detail. The chatterati aren't interested so why should they be?

That notwithstanding, Sir Ivan's persistence clearly had an impact on the Treasury committee chair, Nicky Morgan. She is recorded by the Express going in the BBC declaring that a "no deal" was a "very bad deal". But, of the evidence that so convinced her, we hear nothing.

There seems to be something almost wilful in the refusal publicly to discuss the detail of Brexit. Everything must be in general terms, or the usual biff-bam personality politics. We have been dumbed-down to infancy.