Brexit: a small addition


Time and time again we've seen this. "Team UK" does absolutely nothing, leaving all the running to the EU. Mr Barnier's negotiating team then moves in to fill the vacuum, whence the UK establishment bitches like mad because they don't like what the EU has produced.

In the particular case of the first draft of the Withdrawal Agreement, the UK was given every opportunity to come up with its own proposals.

This was set out in December's Joint Report which re-emphasised the UK's commitment to protecting North-South cooperation and repeated its guarantee of avoiding a hard border. Any future arrangements, the report said, must be compatible with these overarching requirements.

At the time, it was intended that the UK should achieve these objectives through the overall EU-UK relationship, details of which it has been pressed to provide for some time. In the event that this was not possible, the idea was then that the UK should propose specific solutions to address the unique circumstances of the island of Ireland.

It was only in the absence of agreed solutions – arising from one or the other of these activities – that the UK agreed "to maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 (Good Friday) Agreement".

As it turns out, the UK has not produced any formal proposals and has shown no signs of delivering anything which looks even close to a solution that the EU would be prepared to agree. And it is in the precise context that the Commission has decided to produce its draft which, it says, "translates" the Joint Report and Joint Technical note into a legal text".

What this amounts to is an eight-page protocol (which includes nearly two pages of recital), is what is being called a "backstop" option. And this small addition has the potential to blow the Brexit negotiations apart for, without agreement on this, there will be no transition.

In the protocol, Northern Ireland continues to be part of a functioning Single Market, joining a "common regulatory area" with the rest of the Union, thereby constituting "an area without internal borders in which the free movement of goods is ensured and North-South cooperation protected".

In jargon terms, the "common regulatory area" is the technical term for the Single Market (or internal market, if you prefer), although it has not been used before by EU institutions in this context.

The term made a single, guest appearance in 2007 in relation to the treaty creating the Energy Community extending the EU energy market to its southern European neighbours within what the Commission described as "a common regulatory area with shared trade, transmission and environmental rules".

In relation to the Single Market, I first used the term on 4 May 2016 and again a few days later. It is interesting to see the term now lodged firmly in the Union lexicon.

Of course, there is much more than Ireland in the whole draft, which runs to 119 pages, and must be agreed by the 27 Member States before it is formally put to the UK.

The whole thing would be (and doubtless will be) much longer, by a factor of many more pages, if the Annexes to the Irish Protocol were complete. In Annex 2, for instance, will be specified the entire list of EU law that will apply in the common regulatory area, aimed at ensuring the free movement of goods and protecting North-South cooperation.

Lifted from the EU acquis will be the laws which cover the free movement of goods, customs controls, VAT and excise duties, sanitary and phytosanitary requirements, the production and marketing of agricultural and fisheries products, wholesale electricity markets, environmental protection in relation to the control of the import into, release into, or transport within the Union of substances or material, or plant or animal species, and State aid.

By reference to the EEA acquis, this will be a list of about 5,000 measures, which will apply in perpetuity to Northern Ireland.

But it doesn't stop there. The Agreement also requires that customs duties on imports and exports, and any charges having equivalent effect, "shall be prohibited between the Union and the United Kingdom in respect of Northern Ireland. Furthermore, quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited.

If I understand this correctly, it opens a huge, tariff-free back door into the UK where any goods from the rest of the EU can pour into Ireland and thence to Great Britain via Northern Ireland.

With that, we are seeing the crunch point in the negotiations, as was always going to be the case. This is the point where May's stupidity, in committing to leave the Single Market without thinking through the consequences, finally meets reality.

Her ill-considered action meant that – short of non-existent technical solutions – there was going to be a "hard" border in Ireland, unless the UK agreed to move it to the Irish Sea, creating the so-called wet border, an outcome which has been evident for some time. And if Mrs May refuses that solution, she has on her hands an unsolvable problem. Strangely enough, I wrote in a blogpost recently, unsolvable means unsolvable. That is proving to be the case.

There is absolutely no point, therefore – as she did at PMQs yesterday in the prime minister rejecting, in toto the Irish provision. The draft legal text, she said:
… would, if implemented, undermine the UK common market and threaten the constitutional integrity of the UK by creating a customs and regulatory border down the Irish Sea, and no UK Prime Minister could ever agree to it. I will be making it crystal clear to President Juncker and others that we will never do so. We are committed to ensuring that we see no hard border between Northern Ireland and Ireland, but the December text also made it clear that there should continue to be trade between Northern Ireland and the rest of the United Kingdom, as there is today.
This is only something which her government agreed with the EU in December and, true to that agreement, the Commission has included (in Article 15 of the Protocol) a provision which states that,
Should a subsequent agreement between the Union and the United Kingdom which allows addressing the unique circumstances on the island of Ireland, avoiding a hard border and protecting the 1998 Agreement in all its dimensions, become applicable after the entry into force of the Withdrawal Agreement, this Protocol shall not apply or shall cease to apply, as the case may be, in whole or in part, from the date of entry into force of such subsequent agreement and in accordance with that agreement.
It remains entirely open for the UK to come up with its own proposals and negotiate a separate solution – not that any such solution exists. But Mrs May has boxed herself into a corner and she only has herself to blame.

If things get too bad, however, she can always turn to the "safeguards" in Article 13. Presumably, with unintended irony, the Commission has copied out almost word-for-word parts of Articles 112 and 113 of the EEA Agreement, covering safeguard measures. We thus see:
If the application of this Protocol leads to serious economic, societal or environmental difficulties liable to persist, the Union or the United Kingdom may unilaterally take appropriate measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
This, of course, is a measure so many pundits have been telling us could only apply to the likes of Liechtenstein, because it is such a small country, and could not possibly apply to the UK. Yet here we find it, the catch-all provision, without which no treaty should be considered compete.

As for yesterday, any evaluation couldn't be complete without noting that John Major also gave a speech.

This is the man who agreed the Maastricht Treaty and then called together his staff to find out what he had agreed. He then rammed the ratification through Parliament in the teeth of opposition from his own side, and all but destroyed the Conservative Party in the process. He is the very last person who needs to be opening his mouth just now.

Richard North 01/03/2018 link

EU Referendum: Flexcit – not as we know it, Jim


The purpose of Flexcit is to give reassurance to undecided voters, by showing that leaving the EU can be a safe, measured process. It need not have any economic fall-out.

As such, this exit plan does not seek to instruct government. It does not pretend to be actionable policy. It simply conveys a structured argument that says that, if it so desired, the Government can make leaving the EU relatively painless and ultimately very profitable. There is no "leap in the dark".

However, after Vote Leave peremptorily rejected this plan, and after Arron Banks took it on board and then distanced himself from it, it was never going to be easy to get it in front of the public. This is made more difficult by the legacy media's determination to ignore it.

Thus, we really appreciate attempts by supporters to bring Flexcit to the forefront, and have done our best to make the plan accessible. But anything which ends up with Flexcit being misrepresented or distorted, does not do us any favours. The crucial thing is that the plan is a package. It stands or falls as a whole. It is more than one part.

Problematically, though, we are seeing particular aspects of the plan being over-emphasised by the Telegraph in its recent article (above). Doing this and neglecting other parts is to present something which easily be knocked down by our critics. This straw man approach then allows those critics to claim they have demolished the plan, defeating the purpose of our developing it in the first place.

That this is the case has been partly aided by Roland Smith of the Adam Smith Institute. The Telegraph has him discussing a "staged exit from the EU" which appears to be Flexcit but is not. 

Smith initially presented a liberal case for leaving the EU on the Adam Smith website, with a move back into Efta and the EEA", part of a staged process. This was fair enough but, in a series of steps culminating in the Telegraph article, Flexcit has become more and more closely associated with the Norway option.

The point here, of course, is that Flexcit, very specifically, is NOT the Norway option. Phase One of our plan gives three choices, of which Norway is only one. There are two fallbacks, each devised to allow for the eventuality that Britain might fail to rejoin Efta – a prerequisite of the Norway option – or that it might be blocked from continued participation in the EEA.

With no reference to the fallbacks, the Telegraph mistakenly asserts that there is a "larger risk to the Flexcit plan", coming in the form of potential international opposition. Britain's re-entry into EFTA. This we are told "would require the unanimous approval of its existing members". And then, having secured that membership, the UK would "need all 27 of the EU's remaining nations to sign off on it entering the EEA".

Our concern here is that we have gone to extraordinary lengths to avoid our plan being dismissed on these grounds. Failure to join either Efta or the EEA may be a risk to the Norway option, but it is not a problem for Flexcit. If the worst happens, we simply move on to one of the fallbacks – their availability being an absolutely integral part of the plan.

Dwelling on the issue of "entering the EEA", it should be said that the argument has progressed, and in leaps and bounds. Here, the specific point is that the UK is already in the EEA. Thus, it is not a question of "entering the EEA" but of whether we can continue as part of it, having transitioned from the EU to Efta. This issue is discussed at length in Flexcit.

Latterly, we see the transition as one of treaty continuity. The 27 EU Member States (and the three Efta states) can agree that our participation can continue, by consensus. There is no need for each Member State to sign off on the process, making life a whole lot easier.

Further, we are in a much stronger position than might at first appear. The EEA Agreement as between the EU and Efta states relies on the participation of the Efta states. Without their participation, there is no agreement. If the EU refused to agree an orderly transition, the Efta states could pull out, collapsing the agreement and putting the EU's neighbourhood policy in disarray.

That would also have some disadvantages for the Efta states, but they would be able to measure these against the advantage of being part of the world's fourth-largest trade bloc. It would be a matter of who blinks first.

On this issue alone, then, the Telegraph seriously misrepresents Flexcit. But the error is then compounded by speculation that "France could put up a fight". Smith is cited as saying: "There are a number of people in the French political establishment, who would try to dig in and just not do anything", then suggesting that: "Paris could attempt to block a deal outright". But it could not. We have the fallbacks which will prevent this from happening

Failing to mention this, the Telegraph then speculates that, "if opposition proved insurmountable, Westminster would need a backup plan". Ignoring the fact that Flexcit has not one but two backups, we then get a dissertation on the "clean break" option, doing without any trade deal, and instead relying on the WTO option. This is exactly what we wanted to avoid. It creates uncertainty rather than resolving it.

Earlier, we see the Efta/EEA option described as one which, "would result in powers over agriculture, fishing, justice, security, and others being returned to the UK". These alone will "be enough to be getting on with, bearing in mind that we have spent 43 years outsourcing all our capacity in these areas".

Again, this understates the nature of Flexcit. While we will actually be repatriating most of the non-EEA acquis, we have to bear in mind that agricultural products – as well as fisheries products – form a major part of our trade with the EU. Therefore, to maintain regulatory convergence and support equivalence, we will need pro temp to attach both the CAP and the CFP to the EEA, with a country-specific protocol.

With other programmes and continued participation in number of EU agencies, this makes for an EEA-plus solution. It is a "British solution" not the Norway option.

Another area of error is the detail on Liechtenstein in relation to restrictions on free movement, which the Telegraph manages to get spectacularly wrong. Brussels, we are told, granted the principality special status in 1994 under Protocol 15 in the EEA agreement, allowing it to limit the number of new residents for a period of four years. And now, we are told, this agreement remains in place today, and is reviewed on a rolling five-year basis.

In fact, Protocol 15 only dealt with transitional arrangements. As we point out here and here, the current exemption from freedom of movement provisions arises first from Liechtenstein's unilateral use of Article 112 and then from a negotiated agreement, set out in Annex VIII.

Thus, Brussels didn't "grant" Liechtenstein any special status. The principality leveraged its position on the back of Article 112. It owes nothing to the largesse of Brussels – and the arrangement, involving as it does a treaty change, is permanent.

To weaken our case, by getting details wrong, does us no good at all. We are up against formidable and unprincipled enemies, who already have the ear of government and the BBC. Our greatest strengths are accuracy and meticulous attention to detail. We cannot afford to be associated with these errors - that hands the game to our enemies.

Richard North 20/06/2016 link

EU Referendum: the EEA acquis


Revised with the addition of the background to the "three-quarters" claim.

000a EEA-030 acts.jpg

Mr David Cameron, the liar who currently holds office as prime minister, asserts that Norway (as part of the EEA) "accepts about three quarters of EU rules". Yet this is just another lie to add to the others the prime minister has already made in a debate where lying by the pro-EU membership faction seems par for the course.

The truth, as always, is very different. Having contacted the EFTA Secretariat, which administers the EEA agreement, they report that 10,862 acts have been incorporated into the EEA Agreement since its inception in 1992 (see screen-shot above).

Very often, though, acts repeal other acts, and some acts are time-limited as cease to have an effect. Taking this into account, there are 4,957 acts remaining in force today.

By contrast, the very latest count of the EU laws in force (today) stands at 23,076. As a percentage of that number, the EEA acquis of 4,957 acts currently stands at 21 percent. In effect, the EEA (and thus Norway) only has to adopt one in five of all EU laws – not the three-quarters that is claimed.

The prime minister, however, does not quote these primary sources – always a mistake. Instead, he quotes a Norwegian Government report in 2012, which makes a mistaken claim in the introduction, repeated in Chapter 1 of the English version (the only chapter to be translated), which is not repeated in the body of the report (available in Norwegian only).

The error made is to claim that "Norway has incorporated approximately three-quarters of all EU legislative acts into Norwegian legislation", when the detail is to be found on pages 794-5, which do not support this claim.

What we see there is a chart setting out the EU legislation in force (the same source that I have used), only for July 2008 – over seven years ago. In this overview, which comprised a total of 28,031 legislative acts, of which 1,965 were "applicable directives".

The report takes this figure for directives, and compares it with the (then) 1,369 directives adopted by the EEA, then concluding that "about 70 percent of all European Union Directives also apply to Norway through the EEA".

This is where the error lies, for the 70 percent of all directives is wrongly changed to "all EU legislative acts" in the introduction, expressed as "approximately three-quarters", the figure which has been lifted and used by the Prime Minister.

However, the report then goes on to observe that EU had 7,720 current regulations, whereas the EEA Agreement comprised 1,349 applicable regulations, approximately 17.5 percent of the EU regulations. When both were taken together (directives and regulations) – 2,718 adopted by the EEA compared with 9,685 in the EU EU acquis, amounting to about 28 percent.

Interestingly, when the comparison is made on the same basis that I have used (with 24,061 EU legislative acts), the actual percent comes to 11 percent – a far cry from the "three-quarters" claimed in the introduction.

Even without going into the depths of this report (for which I am exceedingly grateful to my commenter), there is plenty of work to show that the claim has already been discredited. Any competent researcher should know that, and Mr Cameron's office should certainly be aware of that.

The report I cite, however, looks at a snapshot of 2000-2013, when it finds that only ten percent of EU laws were adopted. But this ignores the fact that many laws are repealed each year. So as we add to the law book, old laws are dropping off the end. 

Thus, the only valid measure is a comparison between LAWS CURRENTLY IN FORCE. We are making the comparison between the total number of laws on the books of the EU and of the EEA - the laws currently in force. That brings the figure to 21 percent, which can be regarded as definitive at this time.

Yet the three-quarters figure is routinely cited by the BBC, Open Europe and even the Westminster Parliament, even though there is no evidential support for it, based as it is on an error in the Norwegian report.

This careless and even mendacious use of a discredited and inaccurate figure, however, characterises this debate, where truth is the first casualty of war. It is important though, to recognise that the prime minister is amongst those freely resorting to lying, and that the supine media will freely repeat his lies, with not the least effort to check them.

The irony, though, is that the figure doesn't really matter anyway. When the UK leave the EU, it should – like many newly independent states – repatriate the entire body of law, and then work though the list at its leisure to determine what should be kept.

As such, an independent Britain – at least in the early stages – will adopt near-on 100 percent of EU laws. Only gradually will the situation change, when the EU will be adopting laws made by the UK (and Norway) in global institutions. And that is the real benefit of independence.

Richard North 31/10/2015 link

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