Brexit: year of the blog

Saturday 24 June 2017  

It's been a year since we voted to leave the EU. And, on every day since, with just a tiny number of exceptions, we've published a blogpost on Brexit- related issues, including some guest posts from Pete.

Now, I've been working on an experiment, collating the whole output in the year since the referendum, all into one file. I've lightly edited the posts. Reformatted them and converted the html links into active footnotes. Altogether, the file runs to nearly 440,000 words in over 1,000 pages, with better than 2,200 footnotes. Altogether, topped and tailed, it becomes an e-book that's not very far short of half-a-million words.

I've converted this into a .pdf file using the latest software, which keeps the file-size to the minimum. From there, Pete has found a way of uploading the file onto a pay site, allowing us to sell copies for the modest price of £4. You can buy it here or by clicking the button on the sidebar.

This is the second part of the experiment. Since the dawn of time, bloggers (and indeed the legacy media) have been looking to monetise their product. If this works for us, then potentially it's another revenue stream that could keep the blog running – especially as we're trying to keep Pete employed, with limited sponsorship already supporting his blog.

At over 1,000 pages, the length of the e-book is exceptional. It's meant more for dipping into and reference than a straight read. And, using the ctrl F function, readers can do a word search on the whole year's in a matter of seconds. This is faster than can be done on-line.

And, although I say it myself, dipping into some of the old copy is a useful reminder of what went before. No single document can be a complete record, but we've covered a considerable amount of ground. Together with the 2,000-plus links, this is a major reference source.

Direct sales will help finance the next step in our development programme. That includes plans for a multi-author news site, possibly with folded into it. Additionally, the monograph series will continue and we are working on a number of new titles.

And, if all goes to plan, this time next year, we'll have another year of the blog for you. And you never know, we might even know where we're going by then. Miracles do occasionally happen.

Richard North 24/06/2017 link

Brexit: the first year

Friday 23 June 2017  

I didn't think we'd win – mainly because of the execrable campaign run by Vote Leave. The Cummings-Elliott nexus, backed by Johnson, Hannan and their "bus of lies" did their level best to lose it for us. We should have had more faith in the British people. They won the referendum for us.

But the big mistake (made by some) was thinking that this was the final victory. It wasn't. This was Churchill and el Alamein: not the end, not the beginning of the end but the end of the beginning.

An even bigger mistake had already been made, though – the craven, short-sighted refusal of the eurosceptic "movement" to get its act together and settle on a credible exit plan. This was compounded by the stupidity of the likes of Cummings and Arron Banks in walking away from the idea of a plan when one was offered to them on a plate.

A year on from the referendum, we still don't have a plan. We've lost a prime minister, gained another, gone through a general election and now a weakened government had started negotiations by surrendering to the "colleagues" … and we still don't have a plan. We don't even have a bus.

Instead, the entire politico-media nexus is thrashing around, the denizens parading their ignorance – hardly any of them, if any, able to tell the difference between a customs union and a customs agreement.

Just beginning to realise that they're not going to their fabled "comprehensive trade agreement" in time, they're climbing on board the "transitional" bandwagon without the first idea of what it entails or how to get there. For them, ignorance is bliss – to be cultivated and embraced.

In the beginning, it was so much easier. We had a choice between the unilateral, bilateral and multilateral – the WTO, Swiss and "Norway" options. Now, the options have grown exponentially, from the "no deal" at one extreme to carrying over the entire acquis on a long-term transitional agreement that is distinguishable from full membership only because we have lost any voting rights or influence in the system.

The irony of this is that the "Ultras" have spent so much time and energy thrashing around trying to avoid the obvious that they've failed to understand that, the longer a settlement is delayed, the less likely it is that they will get what they want. And if they keep muddying the waters, Brexit could go belly-up. It ain't in the bag yet and it ain't in the bag until it's in the bag.

Meanwhile, Theresa May has been in Brussels, giving away her leverage on expats. She has told the "colleagues" that no nationals of EU Member States living lawfully in the UK will be thrown out on Brexit day.

At the European Council, she said she wanted to offer "certainty" to the estimated three million expats living in the UK, making sure that families would not be split up. The deal, though, is that UK citizens living in EU Member State territory must be given the same rights.

However, there is still room for another cave-in. Mrs May has not yet agreed the cut-off date, when residency rights will end. And she has not yet conceded that the ECJ will retain jurisdiction in disputes over the finer details. But there is plenty of time for that.

As each concession is made, Mrs May's hand gets weaker, while the complexities mount. And breaking ranks from the consensus is JP Morgan which has its key economist declaring that the UK's expectations of Brexit talks are "unrealistic".

This is from Malcolm Barr, his company one of the world's largest banking institutions. And of the state of the UK , he said, "I'm not convinced that (the UK is) really very well prepared at all, to be perfectly blunt".

"I think that some of the expectations which this administration has encouraged people to have about what can be delivered through the Brexit process are a little bit unrealistic", he added, casting doubt on what the process can deliver.

Barr dismisses the idea "that we're going to be able to move directly [to control of migration, control of our regulatory and legal structures] as we leave at some point in probably March 2019, or perhaps a little after". He thinks "we need to be pretty realistic about realising that this is probably going to end up being a more phased and gradual process than much of the debate has suggested so far".

And there's the rub. Not in any conceivable way is this government or any other going to be ready for a full exit by March 2019. And yet, they've not even begun to think of how we're going to manage the transition.

The fact is that a transitional option is not a quick fix. It was simply the only way we had any hope of securing a stable exit within two years. And that pre-supposed that we were prepared, with all the ducks lined up, ready to hit the ground running. But weren't. We didn't have a plan.

The lack of clarity is reflected in the EU's position. The European Parliament's new president, Antonio Tajani, condemns the UK's negotiating position as "unclear". He raises the possibility of Britain staying in the Single Market after the Article 50 exit talks end, hinting at a longer-term transitional agreement.

Tajani raises the prospect of cooperation on the basis of the Swiss and Norwegian participation in the Single Market. But this, it is said, would "torpedo" Mrs May's exit strategy – such that it is.

The European Parliament President argues that the problem is what Mrs May and what the UK Government want to do. Do they want to leave Europe and nothing more, he asks, or do they want to have closer cooperation?

His own answer, rhetorical though it might be, speaks for us all: "Nobody knows", he says. And all because they didn't have a plan.

Richard North 23/06/2017 link

Brexit: known by its omissions

Thursday 22 June 2017  

Observing the more than usually lugubrious Prince Charles alongside his mother, yesterday, one could only marvel at the Queen's modernity in celebrating "bring your child to work" day.

Beyond that, two days short of the first anniversary of the EU referendum, there was precious little else to mark the day in a speech supposedly dominated by Brexit. This is what the Queen had to say:
My government's priority is to secure the best possible deal as the country leaves the European Union. My ministers are committed to working with Parliament, the devolved administrations, business and others to build the widest possible consensus on the country's future outside the European Union.

A bill will be introduced to repeal the European Communities Act and provide certainty for individuals and businesses. This will be complemented by legislation to ensure that the United Kingdom makes a success of Brexit, establishing new national policies on immigration, international sanctions, nuclear safeguards, agriculture, and fisheries.

My government will seek to maintain a deep and special partnership with European allies and to forge new trading relationships across the globe. New bills on trade and customs will help to implement an independent trade policy, and support will be given to help British businesses export to markets around the world.
One wonders if she actually listened to the words she had to say – whether there is some technology available which enables you to blank out the sound of one's own voice when speaking out loud. Only this – or perhaps long practice – would enable her to keep a straight face.

For all the vacuity, though, the words were oddly revealing, demonstrating a Government all at sea, locked in a bizarre "little Englander" paradigm that clearly shows that their priorities are dangerously skewed.

The issue, of course, is that if does not really matter that much whether the Queen's ministers "are committed to working with Parliament, the devolved administrations, business and others to build the widest possible consensus on the country's future outside the European Union".

What we actually need to know is whether ministers are committed to working with the European Union to that effect, because it is only by so doing that we are going to achieve anything at all which will stave off economic disaster. Bereft of any ideas of its own, the Government will find itself having to look to Brussels for its salvation.

As regards the legislative package, we are told that there will be 27 Brexit-related Bills in what the Prime Minister promises to be a busy legislative session.

The key measures will include the Repeal Bill – already flagged up innumerable times, which repeal the European Communities Act 1972 and convert EU law into UK law as we leave the EU. It will also create temporary powers for Parliament to make secondary legislation, enabling corrections to be made to the laws that do not operate appropriately once we have left the EU.

Additionally, there will be power to make changes to domestic law to reflect the content of any withdrawal agreement under Article 50 and to replicate the common UK frameworks created by EU law into UK law. This, apparently, will be a transitional arrangement to provide certainty after exit and to allow intensive discussion and consultation with the devolved administrations on where lasting common frameworks are needed.

Newly offered (to my recollection) is a Customs Bill. It is noted that the EU customs code currently applies directly in the UK and it now seems to have dawned on the few grown-ups left in Government that we will need our own code.

Thus, we are told, this Bill will ensure that the UK has a standalone UK customs regime on exit. It will give us the flexibility to accommodate future trade agreements with the EU and others, and it permits changes to be made to the UK's VAT and excise regimes to ensure that the UK has standalone regimes on EU-exit (assuming that we are keeping VAT).

One does worry more than a little here, though, because the customs regime will depend intrinsically on the agreements we are able to make with our trading partners, and in particular, the European Union.

Rather than ensuring that the UK has its own regime, therefore, one suspects that this will result in an enabling Act which permits ministers to promulgate the myriad of technical regulations that will allow the system to function. When we will see those regulations is another matter.

Following on from this is a Trade Bill which will (in the Government's words) "cement the United Kingdom's status as a leading trading nation, driving positive global change through trade, whilst ensuring UK businesses are protected from unfair trading practices".

That, for an Act of Parliament, is a pretty tall order. Some might even avow that this is not the function of an Act, and neither is the objective solely (or at all) within the Government.

Nevertheless, we are promised that the Bill will put in place the essential and necessary legislative framework to allow the UK to operate its own independent trade policy upon exit from the European Union. That seems more realistic, except that trade policy again will depend on the nature and scope of the agreement with the EU.

Next in line we have an Immigration Bill. With the repeal of the European Communities Act, we are told, it will be necessary to establish new powers concerning the immigration status of EEA nationals.

The Bill will allow the Government to control the number of people coming here from Europe "while still allowing us to attract the brightest and the best". It will allow for the repeal of EU law on immigration, primarily free movement, that will otherwise be saved and converted into UK law by the Repeal Bill, and make the migration of EU nationals and their family members subject to relevant UK law once the UK has left the EU.

Suspicious-minded people might note that the Act (when it comes into force) is not intended to end free movement, per se, but simply to "allow for the repeal of EU law". Whether we do, or not, is another matter.

Similar suspicions might be directed at the Fisheries Bill, which will enable the UK "to exercise responsibility for access to fisheries and management of its waters". One should note the ambiguous wording. There is no claim that the Government is to control access, or even manage the fisheries. Simply, we are to "exercise responsibility" – which is an altogether different thing. If not actually a sell-out, it paves the way for one.

Less ambiguous is the Agriculture Bill, which will ensure that after we leave the EU we have an effective system in place to support UK farmers and protect our natural environment. The key thing, as far as the farmers will be concerned, will be the amount of money in the kitty, and the terms of its distribution. And that we will not know until secondary legislation appears.

Nevertheless. The motherhood and apple pie words are there, with the Bill aiming to provide stability to farmers as we leave the EU and to "protect our precious natural environment for future generations".

Then a Nuclear Safeguards Bill will establish a UK nuclear safeguards regime as we leave the European Union and Euratom. This will take over from locally administered provisions of Euratom, giving the Office for Nuclear Regulation powers to take on the role and responsibilities "required to meet our international safeguards, and nuclear non-proliferation, obligations".

An International Sanctions Bill will support our role as a permanent member of the UN Security Council and a "leading player on the world stage", by establishing a new sovereign UK framework to implement international sanctions on a multilateral or unilateral basis.

This Bill, we are told, will return decision-making powers on non-UN sanctions to the UK and enable the UK's continued compliance with international law after the UK's exit from the EU.

Here, the devil is in the detail, but the very presence of this Bill in the line-up indicates that there might be some grown-ups left in the deepest recesses of Whitehall. Where this takes us will need careful watching.

Of the other Bills, these have relevance in dealing with the consequences of Brexit, such as the Space Industry Bill. Bearing in mind that we could drop out of the EU's space programme (although this would be ill-advised), the Bill will create new powers to license a wide range of new commercial spaceflight, including vertically-launched rockets, spaceplanes, satellite operation, spaceports and other technologies. It also creates a regulatory framework to manage risk, ensuring that commercial spaceflight in the UK remains safe.

Intentional or not, this actually gives a strong signal that the UK is not looking for cooperative ventures with the EU, although we will have to wait to see where we go with Galileo and other projects.

Here, and elsewhere, though, there are strong elements of wishful thinking – and much missing on the Brexit front. We should be getting clear indications of how the UK intends to frame the negotiations, especially if there is to be a transition agreement. It is hard to see whether that could be achieved without new legislation.

However, asking for such detail is probably too much to ask, as the Government itself most likely does not know its own intentions. It has thus been said that this Queen's speech will be best known for what it left out. The omissions may well prove to be more important than what so far has been revealed.

Richard North 22/06/2017 link

Brexit: another phoney Brexit

Wednesday 21 June 2017  

Chancellor Philip Hammond made his much-delayed speech yesterday. This is the man who thought that the cladding used on Grenfell Tower had been banned in the UK, provoking a swift denial from a lead firm in the renovation project. 

And now he has been giving us the benefit of his wisdom on "what we want to achieve from those Brexit negotiations". The Prime Minister's Lancaster House speech in January, he said, "had set out clearly the arrangements that the UK would like to agree, built around a comprehensive trade agreement in the context of a deep and special partnership that goes much wider than trade".

But, said the Chancellor, "we recognise that this is a negotiation, and our negotiating counterparts, while broadly sharing our desire for a close ongoing relationship, will have their own priorities". As to our own priorities, we must be "clear" about them. When the British people voted last June, they did not vote to become poorer, or less secure, but they did vote to leave the EU. And we will leave the EU.

But, Hammond declared, "it must be done in a way that works for Britain. In a way that prioritises British jobs, and underpins Britain's prosperity". He added: "Anything less will be a failure to deliver on the instructions of the British people". This brought us to the moment we'd all been waiting for: how we were going to achieve what the Chancellor called "Brexit for Britain".

Firstly, he said, we would secure "a comprehensive agreement for trade in goods and services". Secondly, we would negotiate "mutually beneficial transitional arrangements". These would "avoid unnecessary disruption and dangerous cliff edges". 

Thirdly, said our miracle worker, we would agree "frictionless customs arrangements to facilitate trade across our borders – and crucially – to keep the land border on the island of Ireland open and free-flowing".

To achieve this last miracle, "in the context of our wider objectives" would, said Hammond, "be challenging". It will almost certainly involve, "the deployment of new technology". Therefore, he added, "we'd certainly need an implementation period, outside the Customs Union itself".

To allow this, current customs border arrangements would remain in place until new long-term arrangements were up and running. And then finally, Mr Hammond had one big trump card. He was going to take a "pragmatic approach" to one of our most important EU export sector – financial services.

This would need "a new process for establishing regulatory requirements for cross-border business between the UK and EU". This would have to be "evidence-based, symmetrical, and transparent" and "reflect international standards".

Cooperation arrangements had to be "reciprocal, reliable, and prioritise financial stability". Crucially these had to enable "timely and coordinated risk management on both sides". Third, these arrangements have to be permanent and reliable for the businesses regulated under these regimes.

As far as migration goes, Mr Hammond would have us seeking to manage it. We would not seek to shut it down. But, beyond that, no detail was offered. This, though, was the tenor of the entire speech. One could not say it was "wishy-washy" – just "wishy". The speech was long on aspiration but entirely lacking in execution.

Yet, despite this, the Chancellor was "confident" that we could do "a Brexit deal that puts jobs and prosperity first". This would be a deal that "reassures employers that they will still be able to access the talent they need", one that "keeps our markets for goods and services and capital open" and one that would achieve "early agreement on transitional arrangements".

And in this lovely, fluffy, cuddly Brexit that Mr Hammond has invented for us, "trade can carry on flowing smoothly, and businesses up and down the country can move on with investment decisions that they want to make, but that have been on hold since the Referendum".

I seem to recall writing earlier about my aspirations for gaining the exclusive franchise for Lunar Green Cheese, with a quota of 1000 tons a week, beamed down directly from the Sea of Tranquillity by a matter transporter. But, it appears, Mr Hammond has beaten me to it. In Brexit terms, he's cleaned out the pool.

There is no going back from this. Either we have a minister here with hidden depths, a man who all this time has been sitting on a brilliant plan, the like of which the world has never seen, or we're dealing with yet another Walter Mitty character, living in a parallel universe, and not even the same one as Mrs May.

Particularly interesting is that Hammond too has joined the ranks of the "transitionals". Having caught up with the rest of the world, in understanding that we cannot conclude Mrs May's "deep and special partnership" inside the period allocated, he has embraced the idea that everything can be solved by "mutually beneficial transitional arrangements".

What nobody is admitting, least of all Mr Hammond, is that a transitional agreement is not quick fix. He, like the others, should have appreciated that the complexity is such that the two-year Article 50 period is barely (if at all) sufficient to craft such an agreement.

Looking at the most recent member of the European Union, Croatia, we see that it applied for membership in 2003 and was in negotiations from 2005 until 2011. The 116-page accession treaty was signed on 9 December 2011.

The essence of accession treaty is that it is (to a very large part) a transitional agreement, easing the entry of a joining nation into the Union. That is takes six years is a good indication of how long these things can take and it is not at all untoward to imagine a transitional agreement with the UK taking those two years that Article 50 allows.

The very fact that so many are leaping on this transition bandwagon is in itself and indication that they are little idea of what is involved. Having already wasted so much time, it is questionable whether there is even time to complete a basic agreement.

Hammond, coming to the party late, is playing games. There is nothing anywhere to indicate that his "ideas" have any more substance than the words in his speech, which were pathetically thin. He has joined the ranks of politicians selling their phoney Brexits. That is all these people have to offer.

Richard North 21/06/2017 link

Brexit: anti-climax

Tuesday 20 June 2017  

In first-day talks that were described by EU officials as "window dressing", David Davis and his "Team Brexit" effectively caved in to Brussels, agreeing to phased negotiations on their three "divorce" points.

In what has been called a "major defeat", there was no commitment to run parallel talks on trade, that ambition having been abandoned within hours of the Brexit Secretary having arrived in the Council building.

Last month, Davis had boasted that he would provoke the "row of the summer" unless he got his way on immediate trade talks, predicting an early collapse if the EU refused concessions.

Instead, the Brussels agenda is going ahead, with three working groups set up, one on EU citizens' rights, one on the "financial settlement" and the other on border issues, in particular, the border with Northern Ireland.

At the press conference after the session, Davis had to admit that the trade issue would only be entertained when the EU had decided that "enough progress" had been made on the EU's negotiating priorities. Confronted with the "weakness" of his negotiating position, Davis could only put on a brave face, claiming: "It's not when it starts but how it finishes that matters".

That much we get from the media – a totally predictable outcome. Davis caved in because he had to cave in. It was that or walk away immediately. The "colleagues" were not in a mood for games.

Mr Davis's humiliation, though, is the least of our troubles. There is no evidence that Mrs May's weakened government has a coherent (or any) plan. Beyond phase one of the negotiations, there is a black hole, from which nothing escapes.

We are getting to the point where, as far as this blog goes, virtually everything that could be said has been said. We have reached the stage where we are simply repeating ourselves while the noise level continues to climb and nothing can be heard above the din.

It is not just a question of this blog being ignored. Even seasoned civil servants and former government advisors are being frozen out of the loop, while ever-vacuous academics fill space on nostrums which demonstrate how little they have thought about this complex subject.

Basically, we have one option – the one we've only ever had: a continuation of EEA membership, if the Efta states will agree to our joining them. Without that, there is an outside possibility of redefining the Efta institutions to permit UK participation without membership, but this will not be easy or quick to set up.

Even then, those who are belatedly, jumping on the EEA bandwagon display such a limited understanding of the EEA Agreement and the treaty structure – much less of the possibilities afforded – that we are scarcely in a position to take advantage of the option.

All that is theoretical anyway. The EEA is not currently on the table and Davis has retreated to cloud-cuckoo land. He insisting that there is much "common ground" with the EU and that the timetable for withdrawal, while "ambitious" is "eminently achievable". This is very much a case of fools rushing in where angels fear to tread, with nothing of substance to support it.

If ever there was a time for the slow-motion train crash analogies, this is it. There is actually little more we can do, other than watch and wait – and record the progress of that train on its final departure from the permanent way.

Richard North 20/06/2017 link

Brexit: the Grenfell dimension

Monday 19 June 2017  

I have written before about the impact of the occupied field doctrine in EU law, and you can even find an informal definition if you look on the net. Broadly, it refers to legislative areas (or fields) which the EU treaties have defined as "shared competences", where both the EU and Member States have law-making powers (competence).

When these areas are first defined, and the EU (usually the Commission) has not sought to make any laws in that field, the Member States many continue making national legislation. However, once the EU legislates in the area, it becomes what is known as an "occupied field".

Then, in the precise areas in which the EU has legislated, the Member States are no longer permitted to legislate. In parallel or related areas, where the EU has no immediate intention of legislating, Member States may make their own laws, but only with the permission of the Commission, which – on notification of a request – may refuse and instead decide to legislate itself.

The basis of this doctrine is set out in Article 2(2) of the Treaty of the European Union (TEU), which states:
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
However, if you search the internet, will you not find very much written about the doctrine This is because, in the deep, arcane recesses of integration theory, they do not label it "the occupied field". It is known by the far more obscure title of "field pre-emption", alongside the related issues of "obstacle" and "rule pre-emption".

The doctrine itself is well known in federal structures, and is a facet of both the Indian and the US constitutions. In the EU context, though, from its original treaty base, it has been vastly expanded through ECJ jurisprudence and case law. Although the precise application tends to vary with different rulings, and between different areas of the acquis, it is a very real and important doctrine which has important practical effects.

It is upon this doctrine which I rely in my earlier piece when I asserted, in respect of the construction standards relating to the cladding used on Grenfell Tower, that the UK Government no longer has the authority to define its own standards (and has not had the authority since 1989 when the first Directive was promulgated).

The reason for this is that the Construction Products Regulation (repealing Council Directive 89/106/EEC) extends the competence of the Commission into the field of construction standards, using its powers under Article 114 relating the functioning of the internal market. Article 114 creates a shared competence and, as the Commission has exercised its power in respect of construction standards and the internal market, this is why the Member States have lost their power.

The way that the Construction Products Regulation (CPD) works, though, is quite complex - to the point of being thoroughly confusing to those not familiar with it.

The system starts with what are known as European Harmonised Standards, with the Regulation (and the Directive before it) recognising the European Committee for Standardisation (CEN) and the European Committee for Electrotechnical Standardisation (Cenelec) as the competent organisations for their adoption.

These standards are thus produced by Cenelec, in the form of EN standards. They take legal effect by being posted in the Official Journal as a Commission Communication within the framework of the CPR (Regulation (EU) 305/2011).

Once they are promulgated, adoption by the Member States becomes compulsory. They are obliged to remove or modify existing national standards to remove any conflicting requirements, in order to bring them into line with the EN.

As it stands, there are only about 450 harmonised standards, which include such delights as EN 15821:2010 on "multi-firing sauna stoves fired by natural wood logs". But, as yet, there is no harmonised standard for composite external cladding panels of the type used on Grenfell Tower.

This means that, where Member States already have their own national standards relating to such products, they are allowed to stay in force. And this explains why – even though standard-setting is an EU competence – different Member States (such as Germany, the Czech Republic and Denmark) still have their own standards.

However, that does not mean that Member States have the automatic right to continue framing their standards. Under the doctrine of "field pre-emption" (aka "occupied field"), they must seek permission from the Commission before they make any changes. In practice, this means that they must formally notify the Commission of an intended change, and if the Commission does not object, the new standard can take effect.

In considering whether to intervene, the Commission – even if Cenelec has no immediate plans for a harmonised standard – will be looking for a gradual convergence between the Member States and will not normally look favourably on proposals which magnify differences between regulatory regimes.

From that base, though, it gets even more complicated. Even where there is no harmonised standard, there is a second tier of standard-setting. This, rather than creating generic standards, allows individual manufacturers to certify their own products as conforming with regulatory standards, permitting the application of CE marking.

The way this works is under the aegis of a dedicated body, the European Organisation for Technical Assessment (EOTA), the function of which is to produce European Assessment Document (EADs).

These are harmonised technical specification for construction products, which apply where there are no formal harmonised standards. So far, 113 have been produced, each of them extremely detailed documents, setting out "essential characteristics" of a product, detailing "relevant assessment methods and criteria".

Once an EAD exists, a manufacturer can apply to a national Technical Assessment Body (TAB) and ask it, on the basis of the EAD, to produce a European Technical Assessment (ETA) in respect of their products. This becomes the basis of a formal Declaration of Performance (DoP) which then allows the manufacturer to CE-mark their product. This in turn allows the manufacturer to sell the product throughout the EU (EEA).

Interestingly, the very product said to have been used to clad Grenfell Tower has been given an ETA in the form of an Agrément Certificate issued by the British Board of Agrément (BBA) (pictured). This is the relevant TAB for certifying that the product is "fit for purpose" and conforms with UK Building Regulations.

This completely contradicts Chancellor Philip Hammond's assertion that the cladding used on Grenfell Tower, which has been widely blamed for spreading the blaze, is banned in the UK on (areas of) buildings above 18 metres. It is also at odds with the claim by the Department for Communities and Local Government, which has said that, if this cladding was used, "it would not comply with current building regulations".

The Agrément Certificate attests that, in relation to the Building Regulations for reaction to fire, the panels may be regarded as having a Class 0 surface – which is the standard set in Building Regulations Approved Document B1 (see page 95).

Now, going back to the purpose of this Certificate as the basis of the product CE Marking, this means that the product can be marketed anywhere in the EU/EEA for the use intended – as external cladding.

In the absence of a harmonised standard, Regulation (EC) No 764/2008 on the mutual recognition of standards applies. In the wake of the Cassis de Dijon judgement, this Regulation stops any national authority from prohibiting the sale on its territory of goods which are lawfully marketed in another Member State, "even where those products were manufactured in accordance with technical rules different from those to which domestic products are subject".

On this basis, not only is the cladding not "banned" in the UK (quite the reverse), it is difficult to see how its sale could be legally banned in Germany or any other EU Member State.

As to whether the product could be banned by the UK government, the answer is qualified. The Government could only apply the procedure set out in Article 58 of the CPR, implementing only those measures which the Commission considered justified.

Looking at all this in the round, in what is my second blogpost on this subject, it would be perverse to assert that there was not an EU dimension to the Grenfell disaster. But the extent to which the EU could be considered to have had a part in the disaster is a matter of judgement, and one can only speculate as to whether things would have been different had we been our own masters.

In the interests of completeness, one must say that all these provisions apply to the EEA, so that if the UK adopted the Efta/EEA route for Brexit, we would see no immediate relief from them. On the other hand, without these provisions in force, it would be difficult for the UK to market construction products on the European market (notwithstanding that Reynobond is made in France).

To that extent, not only does the Grenfell Tower disaster have an EU dimension, Brexit has a Grenfell dimension. When we consider how to prevent any repeat of such a disaster, we are going to have to consider very hard the nature of the regulation we carry over, and how we then modify it to restore any necessary functionality that we might have lost.

Richard North 19/06/2017 link

Booker: Grenfell – the EU dimension

Sunday 18 June 2017  

Already, there have been mumblings in the shrubbery about EU involvement in the Grenfell disaster, with an article in the Express asking: "Did EU regulation mean deadly cladding was used on Grenfell Tower?"

The Express story focuses on EU regulations which "set out rules for buildings’ energy consumption with Britain signed up to the 2010 Energy Performance of Buildings Directive", telling us that:
Article 24 of the directive was cemented into UK law in April 2014 and a Government report says "bringing as many residential and commercial buildings as possible up to a high level of energy performance is a priority for the UK Government".
However, turning to Article 24 of Directive 2010/31/EU, it very clearly does not require cladding, deadly or otherwise, to be used on any building. In fact, one is hard put to see quite what the relevance of the article is to anything. Headed: "Revocation of the delegation", it tells us that: "The delegation of powers referred to in Articles 5 and 22 may be revoked by the European Parliament or by the Council".

Nevertheless, the Directive does have considerable relevance, its energy efficiency requirements for new and modified buildings having been enacted in the Building Regulations 2010 which came into force on 1 October 2010 (not 2014 as the Express asserts). Part 6 is the relevant code and would have applied to Grenfell House. Thus, the requirement to insulate the building most definitely has an EU dimension.

That said, there are no legal requirements as to the way the improved energy efficiency should be achieved – and therefore it cannot be said that there was any specific EU requirement to install combustible cladding to the exterior surfaces of the tower block.

The omission of any specific requirement has brought the likes of Frances Coppola and Steve Peers out of the woodwork, squeaking with rage. Tweets Coppola: "FFS. No. EU energy efficiency regulation did NOT mean flammable cladding had to be used. How low can Kippers sink?"

Steve Peers then tweets that: "the EU energy efficiency law does not override safety rules, as the preamble states expressly". The correct term here is "recital" – and you would expect a self-proclaimed expert in EU law to get that right. But never mind. Peers quotes the recital (No 8) in full, as follows:
(8) Measures to improve further the energy performance of buildings should take into account climatic and local conditions as well as indoor climate environment and cost-effectiveness. These measures should not affect other requirements concerning buildings such as accessibility, safety and the intended use of the building.
He's being a little bit precious here, as the recital does not specifically mention fire prevention, and nor does the need to maintain a high level of fire protection appear anywhere in the Directive. Nevertheless, if the Directive does not explicitly mention fire, the Building Regulations do. If one refers to Part L, this reads across to the "Approved Document L1B" on the conservation of fuel and power.

Under the heading, "Consideration of technical risk", it tells us that building work to existing buildings must satisfy all technical requirements, and that when considering the instalment of energy efficiency measures in dwellings, "attention should also be paid in particular to the need to comply with Part B (fire safety) …".

Ostensibly, this seems to support the Peers assertion, except that – as always – the devil is in the detail. But people such as Peers do not do detail (and he tends to run away and hide when challenged). In order to comply with Part B, one must refer to "Approved Document B". Either of the two volumes will do, as they both give the technical specifications for fire resistance for external cladding.

Now here it gets complicated. Products can actually comply with a variety of standards, including the relevant British Standards. But not defined by any standards institution is a specification specific to Part B, known as the "National Standard", in which context, the product must be conform to Class 0.

Defined in the Standard, this applies only to the surface of the material, in this case a composite made from an aluminium skin with a highly combustible core. Basically, the flammability requirement applies to surface propagation of flame, a test that the aluminium skin can easily pass.

That, then, would look to be the cause of the problem – a gravely deficient standard which did not allow for flames from inside a flat venting up the cavity between the cladding and the structure and setting fire to the combustible core, with the tragic effects we have seen.

As to this standard, the official test specifically excludes the "chimney effect" scenario, with the fire originating from inside the building. Even with the lethal defect, this cladding will pass the official test and thereby comply with Building Regulations.

But that is not the end of it. Although the fire safety requirements are set by the National Standard, this in turn takes its parameters not from the British Standard but from the applicable "harmonised standards". This is part of a system introduced by the Construction Products Directive, and revised by Regulation (EU) 305/2011. In the UK, it is implemented by our Building Regulations. 

In the specific case of external cladding, the UK applies a standard for blocks above 18 metres using EN 13501-1, class B-s3, d2. To all intents and purposes, the National Standard, while not directly comparable with the EN, is no more severe than it. Anything which passes the relevant part of the EN can be assumed to comply with the Building Regulations Part B requirement.

This brings us to the crux of the matter. The EN standard, in respect of fire safety in relation to external cladding is known to be deficient. Even the most rigorous application of material and individual component testing will not necessarily predict overall system performance, and cannot therefore be used as a valid or even useful indicator of its safety. The European standard is fundamentally flawed.

Arguably, this situation could be resolved by the UK taking unilateral action and defining a new, more rigorous standard of its own. But there we are hit by the EU dimension. Because of the Construction Products Regulation and its preceding Directives, in force since 1989, the definition of building standards is what is known as an "occupied field". The UK no longer has the authority to define its own.

Much is made of Germany having more rigorous standards, but my understanding is that the Federal Government had them in place before the first (1989) directive. It is allowed to keep its existing codes in place, as indeed are we, allowing the progressive implementation of European standards.

The way this works is that the standards are voluntary, unless they've been officially adopted as a European Harmonised Standard. The cladding standard is not an official harmonised standard, so different Member States are free to apply their own standards.

However, when CEN National Members (including all EU Member States) decide to implement a standard, they are obliged to withdraw any National Standards conflicting with it. In German states, adoption of new codes is now obligatory. And under EU law, once they've  adopted a standard (even though voluntarily), they cannot implement new standards which are more severe than, or conflict with, harmonised standards.

That is not to say that the UK would necessarily have introduced new standards, had we been an independent state. But under the current regime, there is no point in even trying. We are a passive law-taker and no longer think for ourselves.

What is fair to say though, is that the EU – having taken away our scope to act independently – has dropped the ball on fire prevention. Obsessed with its climate change agenda and the need to meet Kyoto commitments, it has channelled all its (limited) energies into "green" standards for buildings, and neglected other matters, particularly fire safety.

Reviewing the situation, one can see complaints going back ten years that complex structures are not covered by existing regulatory requirements. Before that, even, stretching back nearly 20 years, the fire potential of external cladding has long been a concern.

After a fire in a multi-storey block of flats in Irvine, Ayrshire on 11th June 1999, which killed an elderly man, the Select Committee on Environment, Transport and Regional Affairs set up an inquiry to review the safety of cladding on tower blocks.

Evidence offered to the inquiry published in July 2000, (including from the Fire Brigades Union,suggested that the "guidance" given in Approved Document B "may not be adequate for the purposes of ensuring the safety of external cladding systems in a fire". The Committee was also told by Peter Field of the Buildings Research Establishment, which had done a great deal of work on these issues, that the existing guidance was "far from being totally adequate".

Tragically, while the Committee recommended improvements to existing legislation and testing, neither it nor the Government acknowledged the EU dimension or the need to secure EU Commission approval for any changes. And no fundamental changes were made.

There is no record even of the Commission having been approached to review its own requirements, but it is a matter of record that, having deprived us of the power of define new standards, the EU has not stepped up to the plate and filled the regulatory void. It may not, therefore, be directly responsible for the fire in Grenfell Tower, but it cannot be completely absolved from responsibility. In any reckoning, it too must join the list of organisations that has had a hand in this disaster.

Enter now Christopher Booker who writes in today's column that it was certainly an ominous coincidence that 1974, the year Grenfell Tower was opened was also the year that Hollywood released what was arguably the most famous "disaster movie" ever made, The Towering Inferno.

But, on Wednesday, as we woke up to the horror of what was happening, he received an email that added another curious detail to this awful story. It was from the man who back in the Seventies sold to the local council the original cladding for Grenfell Tower. As he explained, it then consisted of Glasal panels in which were sealed white asbestos cement, so tightly compressed that no fibres could escape.

"It was totally safe", he told Booker, "and would certainly have stopped the spread of any external fire; unlike this new cladding, which contains combustible plastics which can spread a fire up a building so fast that in some countries it has already caused whole buildings to go up, and in others it has been banned".

A much more immediately relevant point, however, on which the forthcoming inquiry will certainly have to focus, Booker says, is what might be called the "European" dimension to this tragedy. So far wholly missed has been the fact that making construction regulations, including those relating to fire risk, is an exclusive "competence" of the EU. Britain has no right to make its own, without Brussels permission.

Furthermore in 2014 the Department of Energy and Climate Change issued its National Energy Efficiency Action Plan, setting out how it planned to meet its EU targets for reducing “carbon emissions” (and also those set under our own Climate Change Act).

In particular, it emphasised the need to comply with Directive 2012/27/EU on "energy efficiency". This explained that the top priority was to improve the insulation of buildings, responsible for 40 percent of all emissions. Local authorities were thus made aware of the section on renovating older buildings, adding an extra impetus to the growing body of climate change legislation.

When Kensington and Chelsea council chose the new cladding for Grenfell Tower it would, therefore, have known that top of the list was the need for "thermal efficiency". On this score, plastics such as polyurethane, polyethylene or polyisocyanurate rated most highly, despite their fire risk. There was even financing available under the government's Green Deal scheme.

Booker long ago took a personal interest in the estate on which Grenfell stands. He spent much of the Seventies investigating the disaster that had been inflicted on so many cities by the Sixties mania for massive "comprehensive redevelopment schemes" and giant council tower blocks.

When he began in 1972 with a book called Goodbye London: An Illustrated Guide to Threatened Buildings, listing all the demolition schemes then planned across London, it opened with a page of pictures showing the vast area of pleasant, human-scale 19th century streets in north-west Kensington shortly to be demolished for the estate that would include Grenfell Tower.

By 1979, Booker had been commissioned by the BBC to make a two-hour television film, City of Towers, which for the first time told the whole story of how the destruction of our cities had been inspired by the megalomaniac dream in the Twenties of the Swiss architect Le Corbusier; and how this led 40 years later to those vast dehumanised council estates, dominated by tower blocks like Grenfell, half of which have since been demolished.

The way our politicians, national and local, were taken in by this maniacal vision was yet another perfect case-study in the deluding power of groupthink. As so often, a beguiling dream had led in reality to a nightmare reality. Grenfell Tower stands today as the most chilling tombstone yet to that mad dream.

As Booker concludes his own piece with that thought, we can also conclude that the Tower stands as a monument to the breakdown of the UK system of government – both locally, when we observe the response to the disaster - and also at that European level where membership of the European Union has deprived us, in important respects, of the ability to govern ourselves.

Richard North 18/06/2017 link

Brexit: an opposition in disarray

Saturday 17 June 2017  

Reality dawns. Painfully slowly, the political classes and their fellow travellers in the legacy media are beginning to realise that the current plans for Brexit are taking us nowhere. In fact, to dignify them with the term "plans" is to suggest a level of coherence that simply doesn't exist.

With increasing frequency, therefore, we are seeing them thrashing around for alternatives in the beginnings of a debate that should have been concluded before we went to the polls in the referendum.

Coming to the fore is the idea rejected by everybody, continued participation in the Single Market via the EEA, with so many leaping on the bandwagon that the wheels are starting to buckle and the axles are bending. And then, along comes Chuka Umunna, Shadow Secretary of State for Business, Innovation and Skills, to tell us that "Labour is clear: Brexit would be better with single market membership".

From recent events, however, one seems to recall that it was Mrs May who boasted obsessively about being "clear" on just about everything – usually preceding statements that were Delphic in their inscrutability. But if "obscure" is the new meaning for "clear", then Chuka Umunna is stepping up to the plate with a vengeance.

Jeremy and our Labour team are quite right to prioritise a "jobs-first" Brexit, says Mr Umunna, as opposed to the Tory approach of sacrificing our economy on the altar of lower immigration. But, he says, "there is a discussion ongoing as to how we would achieve these aims if we took government during the Brexit negotiations".

That Labour might take over at some time during the negotiations is, of course, a possibility – if somewhat remote. So it is encouraging to find that the party is making preparations. This is rather more than the Conservatives seem to have done.

That in itself allows Mr Umunna an easy barb as he notes that the debate within his party on this "does not come close to matching the clan warfare within the Tory party". I doubt, he says, whether Ruth Davidson and Steve Baker can bear to be in the same room together, let alone find common ground over Brexit.

However, in a Delphic observation that rivals Mrs May's level of clarity, he notes that "there are different nuances among Labour folk". He puts it "no more strongly than that".

One of those "nuances" comes from John McDonnell, the Shadow Chancellor of the Exchequer. Contradicting what appears to have been the party line, he has in the past few days said he does not think single market membership is "feasible", something with which the "white van man" slayer, Emily Thornberry, has agreed.

However, raising the prospect of "splits" within the party, Barry Gardiner, the Shadow Secretary of State for International Trade and Liam Fox's counterpart, has raised the prospect of "reformed membership of the single market and customs union". Keir Starmer, Labour's Mr Brexit, has said that his party should keep such an option on the table.

Chuka Umunna, therefore, is evidently charged with papering over the cracks. "The key point to make", he says, "is that absolutely nobody here is arguing that the single market and customs union are bad things". The debate, he avers, "does not threaten our unity".

Here, we learn that "unity" is everything. And just to prove it, Mr Umunna is able to tell us that: "Our affiliated trades unions are strongly supportive of both, given their importance to jobs and workers’ rights". From John to Keir, he says, "we all agree that single market membership, or at least a deal that gives us the exact same benefits, is the best economic option for Britain".

Attempting to put the Labour spin on it, he says that the argument around full membership of the single market is about "whether it can be squared with delivering the desire of many of our voters to gain greater control over immigration".

But, he says – and here comes the meat: "free movement is not unconditional – you can already be required to leave our country after three months if you don’t have a job, but governments have chosen not to do this". Equally, Chuka Umunna declares, "membership of the single market does not mean totally uncontrolled immigration from the European Union".

At this point, though, his comments get bizarre. "Within the European treaties", he says, "restrictions on free movement are explicitly allowed for reasons of 'public policy, public security or public health'", then adding: "So Liechtenstein, which is outside the EU but in the single market, is allowed to impose quotas on EU migrants".

I did say "bizarre". The quote about "public policy" comes from Directive 2004/38/EC (Article 27), which gives grounds for restricting freedom of movement – with the rider that: "These grounds shall not be invoked to serve economic ends".

The issues here are numerous and various. The exclusions cited are not in the "European treaties" but in a Directive. Furthermore, Liechtenstein is not subject to either the European treaties or the Directive. The exclusions come from the EEA Agreement (Article 112), which allows action on the basis of "serious economic, societal or environmental difficulties".

Chuka Umunna should not be making such errors. This is monumental disinformation which, if it reflects the state of knowledge in the Labour Party, betrays a staggering level of ignorance. This we always suspected, but here is strong evidence of a most disturbing kind.

And it does not stop there. The platform for Mr Umunna's display of ignorance was the Guardian. Wasn't there any one there, in the entire editorial process, who had the knowledge to point out the inconsistencies in the piece. Wasn't there anyone who knew that this was an EEA issue, and not a matter for the "European treaties".

But then, that points to a broader omission. Umunna writes a whole piece about the UK's continued membership of the Single Market and does not once mention the EEA. Instead, we get his reference to Barry Gardiner raising the prospect of "reformed membership of the single market and customs union".

For heaven's sake! What does "reformed membership of the single market and customs union" actually mean? And how long is it going to take before MPs – any MP – begins to understand that the UK cannot leave the EU and stay in its customs union?

Here, though, we have a rare focus on the Labour Party. Necessarily, much of our attention is on the party of government, where we see chaos, misunderstanding and ignorance. But this piece shows that the problems are by no means confined to government. We have the main opposition that is also all at sea, unable to offer a coherent position on Brexit.

And the Guardian, the platform for conveying Labour's disarray, then offers an editorial, blithely informing us that: "Theresa May needs to be deflected by facts rather than delusions to try and make our post-EU future work".

It seems to me that this loss-leading newspaper could benefit by being "deflected" by a few facts. Instead, it asserts that Keir Starmer has something intelligent to offer in declaring that the Prime Minister "had been wrong to take continued membership of the customs union and the single market off the table", thereby perpetuating the confusion over the customs union.

We are badly served by the Conservatives, but it is evident that Labour is no better. It has me wondering whether our representatives in Parliament had ever failed us before, to such an extent over such an important policy issue. This alone is enough to question the entire value of the institution – and the media that supports it.

Over the election, Corbyn's slogan was "for the many not the few" but, taking up his theme, all he is actually delivering is a situation where, never in history (or so I believe) have so many been so badly served by so few.

Richard North 17/06/2017 link

Brexit: insults

Friday 16 June 2017  

If we followed the Muppet book of political influence, in order to make an impact on the current debate, we should calmly and diplomatically present our case, suggesting the changes we would like to see, and then sit back and hope that the powers that be will kindly listen to us and respond positively.

Back in the real world, it doesn't really matter how calm and considered we are. In fact, the more emollient our presentation, the less likely it is that any notice will be taken of it. Politics is about pain – the more pain we create, the greater is the chance of creating some disturbance, if nothing else.

The chances of achieving change are, in any case, remote. Politicians at the peaks of their careers, having attained cabinet rank, themselves report how difficult it is to achieve even modest change. I remember Margaret Beckett once (perhaps not the best of examples) saying that a new minister should limit themselves to perhaps one or two things if they were to hope of any success.

On the other hand, the siren voices who tell us to conform, to be polite and well-mannered, are part of the system of suppression and control, holding out the prospect of influence in exchange for obedience and abstinence. If we are "good boys" and promise not to rock the boat, we might get to decide the colour of the office stapler for the junior under-secretary.

Given a system that is so resistant to change, therefore, there is actually no premium in committing to conformity, or in making the effort to be polite to – or about - those in power. If you obey all the rules, you are ignored. If to make a lot of noise, and make your own rules, you'll probably be ignored as well. But there is a very slight possibility that they'll listen to you, if for no other reason than to find out how best to shut you up.

On balance, therefore, unless you are at the centre of power and in command of the levers, the greater advantage goes to the noisemaker – the attention-seeker and the non-conformist. That may be unfair, but it’s the way the system has developed in this country and throughout the developed world. The meek do not inherit the earth.

That said, if the chances are that your efforts are set to achieve absolutely nothing in the short-term, and there is entertainment to be had in poking the stick through the bars, one might just as well get as much sport from an activity as possible, be it mockery or something stronger.

Into that category leaps the Financial Times and a report headed: "A path that would avoid Brexit calamity" – the newspaper's idea of what we should be doing to secure a stable relationship with the EU, and an economically viable Brexit.

On this blog and elsewhere over the years, I've received much advice on how to respond to such pieces – most often along the same lines as the counsel on how to behave with government. In effect, we should be calm, polite and measured.

What those who proffer advice rarely take into account, though, is the fact that so much of the material to which we are reacting is of such poor quality that it is an insult to our intelligence – lazy, ill-considered and generally unhelpful to the cause. Unless one is of a particularly Christian demeanour, prepared to turn the other cheek, one is minded to respond to insult with insult - especially if one is to be ignored.

In fact, being ignored is the insult. This blog has for many years been the premier, independent anti-EU blog, and few will dispute that the quality of research is high, with a wide range of issues covered, to a depth seldom seen elsewhere. Yet, quite deliberately, it is ignored by the legacy media.

In this, we are by no means alone and there are several reasons why this should be so. An important one is a general antipathy, bordering on paranoia, to the independent blogosphere. In the middle of the first decade of this century, when it looked as if the British political blogosphere was about to follow in the steps of the US pioneers and take off, a failing legacy media, lacking in confidence, took fright.

Unable to compete on immediacy and quality of comment, it did everything it could to undermine independent bloggers – partly by setting up competing platforms and (mainly) by refusing to acknowledge our presence. Largely, this succeeded. Unlike the heady days towards the end of the decade, the blog movement is a mere shadow of its former self.

The expansion of social media (Facebook and Twitter) hasn't helped either. Perversely, I've found that promoting the blog through these avenues has met with very limited success. Yet, when I abandoned Twitter, the hit rate soared.

As to the legacy media, there is something of the chicken and egg question here. Some say that if we were gentler, more emollient and positive in our approach, we would not be shunned in the way that we are. But, on the other hand, the reason we are not gentler, more emollient and positive is precisely because the legacy media has a general policy of ignoring independent political blogs.

They are happy to steal our stuff when it suits them – but since they steal from each other, we can hardly take any great exception to that. The greater insult is exactly as posited – the way we are consciously excluded from the debate. But when you look at the quality of the debate, you can immediately see why they are so anxious to avoid exposure to the competition.

This brings us back to the dire piece in the Financial Times which is offering as a means of avoiding a Brexit calamity, a "British reset". After Mrs May's disastrous election, it says, the government does not have the numbers to legislate for a clean break. Nor does it have the time or administrative capacity to negotiate a bespoke arrangement.

The answer, therefore – or so it tells us - is a two-stage process. "In the first", it says, "lasting perhaps five years beyond 2019, Britain would remain in the customs union and the Single Market through an arrangement within the European Economic Area - similar though not identical to that enjoyed by Norway".

At this point, one simply groans. Where to start? First, if the UK is going to stay in the EEA, what about the need to join Efta? Don't the four Efta states have to be consulted and their approval gained? And is it wise to take this for granted?

Secondly, as we have wearily pointed out, the UK cannot stay in the EU's customs union and leave the EU. Staying in definitely does mean staying in the EU. But, a country cannot stay in the EU and join Efta - the two are wholly incompatible. And , in the ordinary way of things, unless we join Efta when we leave the EU, we can't stay in the EEA.

Then there is the issue with the timescale. Although not as complex as negotiating a free trade agreement from scratch, shoehorning the UK into the Efta side of the EEA Agreement would need some pretty substantial adjustments to the Agreement on the back of intensive and time-consuming negotiations. Are the three Efta states and the EEAS really going to commit the resource to something that is only going to last five years, benefitting just the UK?

Furthermore, that pre-supposes that the UK stays on board for that long as the FT suggests that there should be a break clause, requiring two year's notice, if either side wants to quit. But then, given that the EEA Agreement already has a one-year notice clause, why should it be extended to two?

Altogether, this concept, as presented, is wholly impracticable. And since its main if not only purpose is to allow the UK enough time to negotiate a "permanent association pact, embracing security and foreign policy as well as trade", why not just agree a time extension to the Article 50 process? That way we stay as part of the customs union, the Single Market and the EEA – until we're ready to leave.

The FT then goes on to discuss the notional pros and cons for this arrangement, but the whole concept is so absurd that we should not bother with it. One just has to observe that the FT simply hasn't thought this through. Yet, if we delivered such shoddy work, we would be a laughing stock – or worse. The legacy media, however, is free to insult the intelligence of its readers, and still feels entitled to respect (and money).

As much to the point, if the authors actually read – which they can do without a paywall or charge – they would not make such basic mistakes (assuming that they understood what they were reading and acted on it). Yet, by word and deed they assume a superiority over us – yet another implied insult.

Another of these arrogant, self-important know-it-alls is David Owen - as in Lord Owen. He would have us leave the EU in 2019 yet stay in the EEA until 2022 – a mere three years. Yet Lord Owen relies on the highly tendentious Yarrow thesis arguing that we could stay in the EEA without being members of either the EU or Efta. This is an intriguing thesis, but one which is wholly untested.

Yarrow himself argues that it is not necessary for the UK to be a member of Efta to be able to participate in or rely on the supporting institutions of the EEA/Efta pillar, although he concedes that it would require the development of cooperative arrangements with Iceland, Liechtenstein and Norway.  

The point here is where would we go if these other countries refused to entertain cooperative arrangements? What would happen if the EEA members as a whole refused to accept the continued participation of the UK, and invoked Article 62 of the Vienna Convention? What then if, as a collective, they all withdrew from the Agreement (then to set up an identical organisation without the UK).

Nothing of this is rehearsed by Lord Owen, in his documentation or his website yet the man blithely assumes the EU and Efta members would allow the UK to use (or abuse) the process as a transition to allow the completion of an EU-UK trade agreement. The proper course of action would be to seek an extension to the Article 50 negotiation period.

Basically, though, this is the option Ambrose Evans Pritchard would have us adopt, despite its incoherence, in  preference to Flexcit, which he doubtless hasn't read – although he probably hasn't read Owen's work either.

The same goes for Daniel Finkelstein in The Times who prefers the prestige of Lord Owen and his shambolic plan to the carefully thought-out practicalities of Flexcit, He then airily suggests that Mrs May should announce that we intend to remain members of the EEA while we carry on negotiations after leaving the EU – as if it was that simple.

This cavalier disregard for the realities of Brexit is an insult to everyone exposed to it. The journalists promoting such shoddy work insult those who have made the effort to produce something which has a chance of working. And in not realising that deeds can have the same effect as words, these unspeakable people are causing offence without even being aware of what they are doing.

Richard North 16/06/2017 link

Brexit: the spectre at the feast

Thursday 15 June 2017  

Hamish McRae of the Independent has come up with a Brilliant idea, all by himself, which will save the Bexit, Britain, the Planet, the Universe and Everything.

This Brilliant idea is that there is an off-the-shelf solution in the European Economic Area, "the Norway relationship", says The Brilliant Hamish. But the really Brilliant idea that we can use this as an "interim deal" which "will change as little as possible".

"We leave the EU", he says," as required by the referendum, but follow most of its rules and pitch into its coffers. It is not ideal, as Norway acknowledges, and there is one big sticking point: freedom of movement of people. But you could envisage a modified version of that, with some restriction of movement for jobs, being saleable to both sides".

Now think longer term, Hamish tells us. "Assume we are members of a slightly modified EEA. We use the next few years to refocus our trading links towards the rest of the world. It is happening anyway; it just happens a bit faster". Then, he says, "because EEA membership was always a transitional arrangement, we renegotiate it to enable us to have free trade deals with the US, which is already our largest export market, though smaller than the EU as a whole".

Sadly, though, Hamish is too late for the Nobel Peace Prize to celebrate his brilliance. According to Ambrose Evans Pritchard, he got there first. "Like others", he says in his latest column, "I have floated the Norwegian option as a half-way house for five to ten years".

One has to acknowledge that this truly is Brilliance. For sure, the "Norwegian option" has been around forever. We saw a reference to it in The Economist on 7 October 2004, where a particular enthusiast was Peter Hitchens who, on a recent pilgrimage to Oslo, discovered a "real nation which controls its own destiny".

Strangely enough, though, if you search the unforgiving internet from 2007, the earliest point from which Ambrose dates the "floating" of his Brilliant Idea, it is strangely hard to find any reference to it.

On 15 December 2011 we get Reuters columnist, Martin Hutchinson, offer in the pages of The Daily Telegraph, the idea that we should leave the EU and join the European Economic Area. The EEA was established in 1992, he says, describing it as "a sort of half-way house between full membership in what was then called the European Community and total autonomy".

The challenge, Hutchinson warned, would be to make the transition to the EEA amicable. But, he said, it is worth making an effort to keep the benefits of the EU's large market while minimising costs, friction and bureaucratic meddling. Quietly and non-confrontationally, the EEA should be Britain's goal.

But as for Ambrose's Brilliant insight, if he was floating it around 2011 or before, it was so totally invisible that it must have been a submarine. Furthermore, search as one might, this "submarine" seems to have remained invisible for many years thereafter. 

Although in 2014, I formally launched Flexcit on the waiting world, in which I – with the assistance of the readers of - suggested the adoption of the "Norway Option" as an "interim solution", Ambrose must already have been years ahead of us.

In 2015, though, the Telegraph offered us this:
Owen Paterson, the former environment minister who might lead the Leave campaign, says that if Britain joins Norway in the European Economic Area, Britain would be "perfectly at liberty to pursue participation in the single market without being saddled with the EU as a political project". Since Norway does not abide by the EU’s agriculture, fisheries, regional or foreign policies, Daniel Hannan thinks it is "not a bad deal".
Nevertheless, it took another year for Ambrose's "submarine" to surface and become publicly visible for the first time. This was on 2 June 2016, when he had published a piece headed: "Leave camp must accept that Norway model is the only safe way to exit EU".

If Brexiteers wish to win over the cautious middle of British politics, he wrote, they must make a better case that our trade is safe. This, he added, "means accepting the Norwegian option of the European Economic Area (EEA) - a 'soft exit' - as a half-way house until the new order is established".

Further down, he then made a specific reference to "two excellent reports on the EEA option", one the plagiarism of my work by the Adam Smith Institute and the other "entitled 'Flexcit' by Richard North from the EU Referendum blog".

After this long period of invisibility, however, there is now no stopping Ambrose and his Brilliant idea. On 13 June 2016, less than two weeks after its first public appearance, his "submarine" re-emerged, with him writing a piece headed: Brexit vote is about the supremacy of Parliament and nothing else: "Why I am voting to leave the EU". He tells his readers:
The Leave campaign has offered no convincing plan for our future trading ties or the viability of the City. It has ruled out a fall-back to the European Economic Area, the "Norwegian" model that would preserve - if secured - access to the EU customs union and preserve the "passporting" rights of the City.

The EEA would be a temporary haven while we sorted out our global trading ties, the first step of a gradual extraction. The Leavers have not embraced this safe exit - or rather, less dangerous exit - because it would mean abandoning all else that they have pledged so promiscuously, chiefly the instant control of EU migrant flows.

By this fourberie they have muddied the water, conflating constitutional issues and with the politics of immigration. We risk a Parliamentary crisis and shrieks of betrayal if the Commons - discerning the national will - imposes the EEA option on a post-Brexit government, as it may have to do.
It doesn't seem here as if there are many others who support this "temporary haven" idea, and there is no mention of Flexcit. But never mind. Ambrose's "submarine" is powering ahead in full sight. Nine days later, on 22 June 2016, he writes under the heading of, "UK and Europe face Mutual Assured Destruction if they botch Brexit". And again he is telling us that: "My preference is the European Economic Area, the Norwegian option".

After keeping his Brilliant Idea submerged for all these years, Ambrose makes up for lost time, asserting that it is "a temporary way-station to retain unfettered access to the EU market and 'passporting' rights for the City". It is, he adds, "a withdrawal in safe stages, with all the compromises that this entails". This, entirely coincidentally, exactly matches the Flexcit proposal of a phased exit.

Then, only days later, on 24 June 2016 - a day after the referendum – he tells us that the pro-Remain group TheCityUK already has a plan to limit the damage, insisting that the City can prosper outside the EU. They want, he says, unfettered access to the EU single market and passporting rights for the City, and this means either pushing for the Norway option of the European Economic Area (EEA), or a hybrid variant.

But, Ambrose says, "this safe-exit is a compromise, and an olive-branch to the EU since we would continue paying into the EU budget and accepting the EU Acquis. It would last until we have negotiated our bilateral trade deals with the rest of the world".

Oddly enough, the reference to TheCityUK and the Norway option was repeated by Reuters on the 27 June 2016, except there was no reference to an interim or temporary option. However, the day before, EU Law Analysis has stated that, "the EEA could be used as a purely interim measure while negotiating a longer-term arrangement, which could take the form of amendments to the EEA itself".

By now, of course, the idea is gathering a head of steam. Last Saturday, Liberal-Democrat Voice was taking the view that, "it is becoming more and more crazy that this country has not, at least as an interim “holding” solution, gone for the Norway (EEA/EFTA) option".

So, where does this take us? Prior to 2014, we can find no reference to the Efta/EEA option (in any guise, including as the Norway option), specifically or in any way discussed as an interim, transitional or temporary solution.

Post 2014, there are multiple references to the "interim solution", but mostly related to Flexcit in some way or another. The first time I can find to Ambrose referring to the Norway Option in that context is on 2 June 2016, alongside his reference to Flexcit. And that is after I've had several discussions with him over the telephone, and sent him a copy of the work.

But then, on 10 June 2017, Ambrose re-appears to promote the EEA (the Norwegian option) as a "natural fit", attributing it to Lord (David) Owen, "one-time Labour foreign secretary and doyen of the EEA camp". He says: "We should use the EEA as a vehicle to lengthen the transition time". And now Ambrose tells us: "Like others, I have floated the Norwegian option as a half-way house for five to ten years".

That's the way it's going to play out. That's the way we do business in this country. Despite my beating the drum for years for the EEA as an interim option, and being largely ignored, the legacy media have now "discovered" it all by themselves. They are now in the process of owning it, with Ambrose in the vanguard. In a few weeks, they will have re-written history and Efta/EEA as an interim option will be their unique property.

Give it a few more weeks and the interest will either have subsided or it will have been "reinvented" by the politicians, whose "brilliance" will be applauded by fawning Tory Boys in Conservative Home, or somewhere elese in the system. Flexcit, the spectre at the feast, will remain invisible.

Richard North 15/06/2017 link

Brexit - the first year - New e-book by Richard North
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