Thursday 8 December 2016
If ever there was to be a demonstration of the inadequacy of the Commons as a scrutiny body, it was yesterday's opposition day debate, calling for a plan to be produced by the government before it invokes Article 50.
Taking on board a Government amendment, the motion was also to include a call for a deadline of 31 March, by which – at the very latest – the Article should be invoked. And, in the end, the amended motion was approved by the House by 448 to 75 votes – a majority of 373.
Opened by Labour Brexit spokesman Keir Starmer (pictured), to a dismally unfull House, the debate was characterised by the succession of MPs parading their ignorance.
Thus, the highlight of the debate (or, to be more accurate, lowlight) was Dominic Grieve, former Attorney General, who had expressed his frustration at the Government's apparent refusal to come up with a coherent plan, welcoming its new-found willingness to deliver.
He then complained that some of the things said in the House seemed "rather fanciful". We have, he said, heard a lot about the sovereignty issue requiring us to withdraw from the European Court of Justice, on which he had to "gently point out" that if we are going to stay within the mechanisms of justice and security, decisions of the ECJ on interpreting the treaty will continue potentially to have force on us in this country.
This was also a reproach to a number of MPs who have decided (wrongly as it turns out) that we should not stay in the Single Market because it requires that the UK remains subject to the ECJ, with Grieve pointing out that we are signed up to over 800 international treaties which have arbitral mechanisms for resolving disputes.
Unless we start getting out of this fantasy element about Europe as a pariah entity, he said, we are not going to start getting down to a realistic assessment of what it is in our national interest to remain adherent to and what it is in our national interest to withdraw from.
The logic of what extremists such as Duncan Smith were saying was that we would have to withdraw from all the 800 treaties that were subject to any arbitral mechanism because they undermined our sovereignty.
This is the kind of issue in debate we have got to start to sort out, said Grieve, "because the public out there expect us at least to have some degree of expertise about what we are actually trying to do".
Never a truer word was spoken, only to have the man then continue his speech by drawing on the situation with "regard to the WTO". I may be wrong, he said, but "I think joining, or rejoining, the WTO requires a negotiation with 163 countries, including an agreement with the EU. So that WTO negotiation will also be a matter of great complexity".
Needless to say, Mr Grieve was wrong. We are already a member of the WTO in our own right, so there is no question of us having either to join or rejoin.
As to having "some degree of expertise", though, he could just as easily have been complaining about the facile Steve Baker, who told the House, "We cannot stay in the EEA if we want 80 percent of our economy to be subject to new free trade arrangements with the rest of the world, because one has to put one's domestic regulation on the table".
Given that Efta is a free trade agreement, to which non-EU parties to the EEA Agreement belong, and Efta has 27 free trade agreements covering 38 countries, Mr Baker – as usual – is talking his usual share of tosh.
It is just not good enough to have MPs spouting such unmitigated rubbish, any more than it is acceptable for Peter Lilley to assert that "we will not be members of the European economic area, because all members of the European economic area have to accept free movement", especially when he knows this to be untrue.
There is little between him and Labour MP Heidi Alexander who, like so many MPs has bought into the myth of conflict between Single Market participation and freedom of movement, asking whether the Government's ultimate priority was continued tariff-free access to the single market or an end to freedom of movement.
"They might wish to keep up the pretence that they can have both, but the mood music from Europe suggests otherwise", she asserted. "Tariff-free trade with the EU has to be the priority, and if that means we have to accept immigration from within the EU, so be it". There speaks the "narrative", imbibed uncritically by the lumpen, unthinking drones.
And what price Emily Thornberry who knows so little of the nature of a customs union that she asserts that leaving it, would mean having to check every container coming in at Dover. It would mean UK firms having proof of origin tests whenever they export to Europe. It would mean chaos and it would mean gridlock for cross-border supply chains"?
Duncan Smith, on the other hand, commits the lesser sin of asserting that staying in the customs union means that the UK cannot make its own trade agreements – making the common mistake of confusing the customs union with the common commercial policy.
Bill Cash is another of those who opposes participation in the EEA. But his mantra is: "because we cannot be subject to that European Court in any circumstances". This is an erroneous belief shared with Owen Paterson who has so much changed his tune that he now believes that the Single Market doesn't even exist.
Ironically, this latter assertion is on the basis of a speech given by Lord Bamford in the House of Lords, saying that there are ten standards for brake lights on tractors within the current so-called single market. "It is a non-problem", said Paterson. "People just punch in the information when they go on the production line".
Of all people though, Paterson should know better. He misquotes Bamford, who actually stated that "farm tractors must comply with at least ten individual - and different - pieces of national road legislation, at great cost to my business, in the likes of Germany, Italy, and certain other EU markets".
Thus, Bamford is referring to regulations in general, and even then he speaks with a forked tongue. His particular and special problem related to high speed road tractors, for which there is not yet a unified standard (although one is on its way). This hardly supports the Paterson claim of a non-existent Single Market.
As for brake lights (or stop lamps, as they are called in the regulation), there is but one technical standard. By reference to Commission Directive 97/30/EC of 11 June 1997 and Directive 2009/68/EC, Mr Paterson should have known that it is not an EU standard, but is produced by UNECE, set out in paragraphs 1 and 5 to 8 and Annexes 1 , 4 and 5 of Regulation No 7.
As to the rest of the debate, it was once said by a Chinese philosopher that, if you sit long enough in one place, the whole world will pass by. That can hardly be true but it is certainly the case that, if you listen long enough to the proceedings of the House of Commons concerning the EU, you will hear just about every single error and misunderstanding in the book – and perhaps a few more.
Yet the MPs, prey to every passing mantra, are the people who want the Government to deliver a plan so that they can scrutinise it. All they are doing is showing us that they are almost completely incapable of so doing. Forty years of subordination to Brussels has left our representatives devoid of understanding, so lacking in knowledge that most of them do not even begin to perceive the depths of their own ignorance.
Funnily enough it was Ed Miliband who observed in the debate that "our feeble system of scrutiny undermines Parliament's ability to check or restrain the Government's action in Europe…We therefore need a system that gives Parliament real powers over ministers, enough time to scrutinise, and the transparency to restore public trust in the process".
But he was quoting the current Prime Minister who in 2007 wrote those words in a pamphlet with Nicholas Timothy, her chief of staff. Nevertheless, he agreed with the words.
Even now, though, it is not scrutiny we're getting out of Parliament, but expensively produced noise. There is no reason to believe that there are any MPs capable of effectively evaluating the Government's plans, or offering sensible comment.
The quality of debate is so poor that one can only think that the Commons is intent on writing its own redundancy notice. And since it has effectively been AWOL for 43 years, who would miss it when it is gone?
Wednesday 7 December 2016
The New Statesman has published an article with the headline: "Who is the EU's chief Brexit negotiator Michel Barnier?", offering a potted biography.
It would have been better had it inserted a comma, making the header read: "Who is the EU's chief Brexit negotiator, Michel Barnier?" By that means, it would have been addressing Mr Barnier, posing a very relevant question.
The answer, of course, is no-one. As we pointed out
at the time of Barnier's supposed appointment, until Article 50 is invoked, the chief negotiator cannot be appointed. Then, rather than the Commission
making the appointment, the post is entirely within the gift of the European Council - the leaders of the 27 Member States who will decide on the outcome of the negotiations.
More than a few people have seen in Juncker's action a pre-emptive move in what is the ongoing power struggle
between Council and Commission, with the Commission getting in first to stake its claim.
But, leaving nothing to doubt in an extraordinary act of hubris, the Commission is now describing their man
as "Chief Negotiator with the United Kingdom under Article 50 of the TEU", an arrogant presumption that deserves to be slapped down with little ceremony.
Perhaps though, Juncker thinks that by launching Barnier in a high profile role, with a gullible press rolling over and accepting his coup
at face value, he will box Tusk into a corner, making it almost impossible for him to choose someone else without a very public and damaging row.
On the other hand, almost daily we are seeing changes to the composition of the European Council. Two of the three figures who so publicly gave homage to Spinelli, back in August
,will no longer be around when the negotiations get under way.
There is also a possibility that the President of the European Council, Donald Tusk, will no longer be in charge past the first few months of the negotiations, His second term as president is by no means assured.
All we would need is for Chancellor Merkel to take a fall and we would be dealing with a very different – and more unpredictable – European Council. Junker could find himself with far stiffer opposition that he had anticipated, with the appointment of an entirely new face to manage the negotiations.
That said, yesterday, Barnier was cock of the walk, giving his first "press briefing" in Brussels as usurper-in-chief, setting out his view of how he sees the negotiations developing.
Sadly, as it was a briefing rather than a formal speech, all we got on the publicly-available video was 13 minutes of introductory remarks, spoken in English and then repeated (more or less) in French, with no record of the press questions.
However, the "take home" point was Barnier stating that the settlement would require approval by the Council and the European Parliament, and then ratification by the UK Parliament. He is allowing six months for these processes which, he says, only gives 18 months for substantive negotiations. If Mrs May invokes Article 50 by the end of March, that means that talks must be wrapped
up by October 2018.
This was much the point made by Guy Verhofstatd
, when he recently warned that there would be an "intense" window of 14-15 months for negotiations which "need to be finished in any case before the next European elections (in May 2019)".
Verhofstadt, of course, is another pretender, posing as the European Parliament negotiator, for talks in which the Parliament has no formal status. At best, he can be an observer, taking part in discussions on the margins. He cannot demand a seat at the table, as of right.
Both Verhofstatd and Barnier warn against "cherry-picking", reiterating the now well-worn mantra that the four-freedoms are an integral part of the Single Market and, as such, are non-negotiable. This is something Angela Merkel
has also been keen to repeat.
However, Barnier does not rule out a transitional settlement, although he declined to go into what kind of relationship would be possible. Nevertheless, he cites the example of EEA members, stating that Norway and Iceland indicated how a transitional arrangement could operate.
By coincidence - one assumes - Norwegian foreign minister Børge Brende was in London on Monday
to meet Boris Johnson, David Davis and Liam Fox for talks over post-EU future. Predictably, for a Norwegian conservative with long-standing Europhile tendencies, he took a downbeat view of UK following his country's path.
Britain must understand that there is no "silver bullet", he said. "Being a part of the Single Market, as we are, also means to implement all directives, and we are not in the room when these directives are decided on", he added.
This is the usual misleading rhetoric, more so as we have never regarded the Efta/EEA route as anything other than the least-worst option, suitable only as an interim settlement. Here, there is some encouragement as Brende concedes that Norway's access to the Single Market "had served our country well". He confirmed that if Britain chose to "go through an EAA agreement", his country would assess its interest.
But what no one is putting together – at least publicly – is the degree to which continued EEA involvement changes the game. It cannot be repeated often enough that the EEA Agreement is a distinct treaty with its own rules, entirely separate from the EU treaties. The UK, following the Efta/EEA path, would be dealing with and entirely different set of actors, outside the Article 50 process. And in that environment, the "four freedoms" are not a fixed quantum, no matter what the Prominenten
To that extent, Barnier might have less control than he thinks, and be less capable of influencing events than he likes. With the internal power play between the Council and Commission, and the dynamics of new faces at the table, the outcome becomes a whole lot less predictable than he and the general run of pundits would have it.
That much also applies to the domestic front, where Theresa May, against her own inclinations, has been manoeuvred into promising
to present her exit plan to MPs before she invokes Article 50 in March. This is being regarded in some quarters
as "a major climb down" to avoid a humiliating Tory rebellion
in the Commons today during an opposition day debate
Yet, on a visit to Bahrain, Mrs May is talking of
a "red, white and blue" Brexit, thereby scotching ideas of a so-called "grey Brexit". This was a half-baked idea which was being floated over the weekend, involving a CETA-like agreement with the EU. It has not even survived into mid-week.
Furthermore, those who understand that the EEA option is almost infinitely flexible will know that her rhetoric does not rule out going in this direction. But, as always, it does not rule it in either. And neither can anything be inferred from Liam Fox's announcement
that he intends to shadow the EU's WTO schedules of commitments.
While Lib-Dem leader Tim Farron believes this is "a clear sign the Government is steering the country towards an economically disastrous hard Brexit", The Sun
reports that Fox is launching a bid "to join [the] World Trade Organisation as independent member". Despite the rampant ignorance, though, this is a necessary administrative step towards independence, very much along the lines we envisaged
What that says is that reality remains in the driving seat, while none of the players are totally in control – not even the Supreme Court, which seems to be so distant from real world issues that, by the time it delivers its judgement, we will probably have forgotten what it was ruling on.
There is still a very long way to go and about the only thing about which we can be sure is that the direction of travel is anyone's guess. As we have seen, and continue to see
, the pundits have an unerring capacity for getting it wrong, while even the best are finding the way hard to divine.
Tuesday 6 December 2016
In public health practice, I occasionally come across what we would call "hysterical vomiting", sometimes known as "epidemic hysteria". Invariably seen in girls' schools, it presented as an outbreak of vomiting and other symptoms, for no apparent reason, for which no medical explanation or evidence could be adduced.
Initially rather alarming, and in some ways replicating outbreaks of winter vomiting, these outbreaks would be over as quickly as they erupted with no lasting effect or harm done – testament to the phenomenon of mass hysteria.
And in many ways, that is exactly what we were seeing yesterday in the Supreme Court, where so many solicitors and barristers turned up to the proceedings that harassed court administrators had to provide an overspill room, with video links.
The occasion was, of course, the appeal hearing on Article 50, the nature of which is helpfully spelt out on the Court's website . There, we are told, the issue is:
Does the Government have power to give notice pursuant to Article 50 of the Treaty on European Union of the United Kingdom's intention to withdraw from the European Union, without an Act of Parliament providing prior authorisation to do so?
By way of a reminder, Article 50(1) – as set out by the Court – states that: "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements".
Nobody is disputing that point. The moment Mrs May was appointed prime minister and said "Brexit means Brexit", it was very clear that we are leaving the EU. That decision has been taken – the ship has sailed.
At issue, therefore, is Article 50(2). This provides that "A Member State which decides to withdraw shall notify the European Council of its intention", and the serried ranks of legal talent are now locked in battle over whether the Government can do this all by itself, or whether it needs an Act of Parliament allowing it to do so.
Paraphrasing the argument, the Government says it doesn't need any authorisation as it can rely on Royal prerogative, while the opposition says the Government can't rely on Royal prerogative, because…
But one seriously wonders whether any of the lawyers and all the many other pundits have actually read Article 50(2) in a critical fashion and actually understood what it says.
To repeat the provision, it says that: "A Member State which decides to withdraw shall notify the European Council of its intention".
In precise terms, this is an instruction, conveyed via the Treaty of the European Union, to Member States which have decided to leave the Union. It requires of those states that, having decided to leave, they should tell the European Council of their decision.
Read it any which way you like. In plain English, it says: "A Member State … shall notify ….". By any possible interpretation, that is an instruction. There is no other rational way of reading it.
As we know, treaty requirements (instructions) are addressed to governments – not parliaments. The governments are the parties of record, representing their respective countries. When it comes to our Parliament, it is sovereign in its own House. No external power can tell it what to do.
In fact, the role of Parliament is to tell the government whether it may obey a treaty, which it does by way of ratification. In the context of the EEC (which became the EU), the ratification and the government's authority to act rests on the European Communities Act 1972. Section 2(1) provides that:
… all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the UK shall be recognised and available in law, and be enforced, allowed and followed accordingly …
In other words, the Government does not rely for its authority to obey the instruction set out in Article 50(2) on Royal prerogative. The instruction is given legal effect by an Act of Parliament, namely the European Communities Act 1972 (as amended). The Government must obey relevant treaty provisions because Parliament tells it that it must. To repeat: Royal prerogative is not involved.
On that basis, it is completely otiose that anyone should argue that, in order to invoke Article 50(2), written into an EU treaty as an instruction, now requires an Act of Parliament before the Government can obey it.
By the same token any EU directive, each of which bears the legend, "This Directive is addressed to the Member States", would require an Act of Parliament before the UK Government could transpose it into UK law. As it is, the government relies on the ECA for its authority, as indeed it can and must do in invoking Article 50(2).
Then, on a purely practical note, since it is agreed the Government has the right to decide that we should leave the EU – having made that decision without challenge – is anyone seriously suggesting that it should not be allowed to tell the European Council of its decision?
That is one possible effect of giving the Article 50(2) decision to Parliament. There is no point in it having the power if it cannot exercise it by refusing to notify the Council. We would then be in the absurd position of the Government having decided to leave the EU but not being able, formally, to tell it what it had done.
Since the decision to leave would not have changed, the Prime Minister would then, presumably have to write a note to President Tusk saying: "I am no longer going to attend EU meetings, and we're no longer going to obey your laws, but I'm not allowed to tell you why".
How can it be, one then wonders, that so many High Persons can get it so wrong? But such persons, no more or less than others, are not immune to their own forms of mass hysteria. We should, perhaps, call this variety "judicial hysteria".
Yet, for all that, the President of the Court, David Neuberger, avers that the appeal "is concerned with legal issues and, as judges, our duty is to consider those issues impartially, and to decide the case according to the law". "This", he says, "is what we shall do".
It would help if he started by reading it.
Monday 5 December 2016
Styled as a "car crash" interview - which was anything but - we have Nick Clegg discussing with Andrew Neil the lack of a Brexit exit plan. The thrust of the interview is Neil asserting that the leave campaign made its position clear during the run-up to the referendum, while Clegg insists that it didn't. It all goes back, said Clegg:
… to the origins of the debate prior to 23 June. What's coming back to haunt everybody, the whole nation, was the fact that the Brexiteers didn't deign to spell out to people what they actually meant. Now you will now no doubt quote this quote and quote that quote but actually there was no manifesto from Farage, Gove and Johnson, united, coherent, putting before the British people – I'm not talking here about television clips in a television studio … on crucial things like whether we stay in the Single Market.
Neil responded that there was a "framework document" from the official leave campaign, widely covered by the media, in which it said that we want the supremacy of EU and EU jurisdiction to end, budget contributions to end and the EU's control over the UK's borders to end.
Demonstrating his lack of grasp of the subject (which he does all too often), he also said it wanted to leave what they call the common commercial policy – which, he said, "is another way of describing the Single Market".
This, quite rightly, had Clegg protesting that these were not the same things, only to have Neil, without apologies, running a number of clips showing Gove, Johnson and others stating that we should leave the Single Market.
None of these people, of course, had any authority or mandate to speak for anyone other than themselves. The official leave campaign was appointed by the Electoral Commission for its ability to run the campaign, not because it had any claim to represent the views of leave voters.
But, as Clegg observed, any such claim would have required a manifesto. "Where was the single document from all of the key Brexiteers saying British people, this is what will happen if you leave the European Union? " he asked.
Warming to his theme, he answered his own question: "It was not there", he said, adding: "I'll tell you why it was not there. It's not as if they were not warned. Dominic Cummings, apparently the intellectual architect of the Brexit campaign, said months before the campaign, he said it's very important we don't say what we mean".
As a result, Clegg concluded, they did not state what Brexit means. "They didn't have a mandate on how to do it as they didn't deign to spell out what they meant".
And, not for the first time, Clegg does have a point. It's exactly the same point we made in Flexcit, for exactly the reason that we are all addressing this precise point. Without having spelt out in detail what Brexit would mean before the referendum, the campaign has no authority whatsoever to state the terms on which we leave.
What is particularly apposite here, though, are Clegg's comments about the sayings of Cummings. These were articulated in his blog on 23 June 2015, coincidentally exactly a year before the referendum, to the very day.
Asking, rhetorically, whether the leave campaign (then the "no" campaign) needed to have a unified plan for exit, he stated: the campaign "is neither a political party nor a government. It has no locus to negotiate a new deal".
Creating an exit plan that makes sense and which all reasonable people could unite around, Cummings argued, seems an almost insuperable task. Eurosceptic groups, he said, have been divided for years about many of the basic policy and political questions.
At this point, Cummings wrote of an "interesting attempt" at such a plan, referring to Flexcit, the merits of which he promised to discuss when he had studied it more. That was never to happen.
But even if a plan succeeded, Cummings averred, the sheer complexity of leaving would involve endless questions of detail that cannot be answered in such a plan even were it to be 20,000 pages long, and the longer it is the more errors are likely.
On top of the extremely complex policy issues is a feedback loop, he said. Constructing such a plan depends partly on inherently uncertain assumptions about what is politically sellable in a referendum, making it even harder to rally support behind a plan.
Thus, Cummings concluded, "there is much to be gained by swerving the whole issue", adding:
Different people have different ideas about the best way to leave. For example, some people suggest we should leave the EU but simply remain in the Single Market while we negotiate a new deal. Others have different ideas. Global rules set by the World Trade Organisation provide some guarantees against European countries discriminating against British trade. But none of this is the real point. We are not a Government. We can't negotiate anything.
In a lengthy dissertation, he then told us that a "no" vote "really means that a new government team must negotiate a new deal with the EU and they will have to give us a vote on it, but after a thoroughly confused argument, he then decided that: "What a NO vote really means would depend upon what the political parties say they will do and this remains unclear as these issues have not been explored yet".
From all that, one of the key point Cummings makes is that Eurosceptic groups "have been divided for years about many of the basic policy and political questions". And they still are.
The likes of Gove, Nuttall, Banks and all the others squealing about leaving the Single Market have no more right to have their views taken into account than anyone else. How we leave is a matter for government, as it is only government that will have to stand by its record in an election.
All the rest are just unaccountable noise – and especially the likes of Andrew Neil, the man who doesn't even know the difference between the EU's common commercial policy and the Single Market.
Sunday 4 December 2016
The big mistake we have all been making has been to focus too much on the mechanisms for leaving the EU, with not enough given to what we want out of Brexit. Thus, it is perfectly fair to observe that, in the referendum, we voted for a departure, not a destination.
Even now, the public discourse is largely avoiding the question of where Brexit is taking us, with the end result more likely to be a consequence of our mode of leaving rather than the result a deliberative policy. Rather than defining a direction of travel, therefore, the Government seems to be devoting more effort to containing the effects of different leaving options.
Raising the issue from outside the bubble, though, is not going to be easy - although Pete has made a start. The bubble-dwellers are so behind the curve that they haven't even begun to think seriously about an end game. And neither are they temperamentally or intellectually equipped to do so.
In any event, for the next week we are going to be distracted by the Supreme Court hearing, which is going to trigger interminable comment on Article 50 and related matters, with no resolution in sight until mid-January. That will shunt discussion on an end game further down the line.
Despite most journalists having a basic education and at least average intelligence, they nevertheless seem to be making an incredible meal over the term "interim", or "transitional". We assume most of them know what these words mean, although they seem to have difficulty in translating them into practical effect.
Thus we have the likes of Simon Watkins in the Mail on Sunday whingeing about the aims of Brexit being "diluted". One by one, he writes, "the much-vaunted aims of Brexit are being diluted. The core objectives were surely leaving the single market, scrapping our payments to the EU and controlling immigration".
But those objectives were not part of the referendum which, as we all know, was confined to the question of whether we should leave the EU. There was no plebiscite on the Single Market, and many of us did not consider (and still do not consider) that EU payments were a core issue.
As to immigration, despite the recent surge on movement from EU Member States, it is still the case that more immigrants come from outside the EU – where we have the means of control but choose not to use them.
Where immigration from the EU is concerned, a post-Brexit UK that stays in the EEA (via Efta) would have the unilateral right to restrict movements, under Article 112 of the EEA Agreement. It is only the absolute determination of the politico-media nexus to remain ignorant on this issue which allows the likes of Watkins to make the point he does.
But what he and so many of the others ignore is that concessions which might be unacceptable if they were part of the final settlement may be tolerable – and even welcomed – if they were part of an interim settlement which paved the way to a stable long-term solution.
The degree to which we would be prepared to accept concessions would doubtless depend on the nature and attractiveness of the end game. But it is not unreasonable to posit that the more attractive it is, the more we are prepared to concede in order to attain it.
Ironically, within Flexcit we have long held that an option which keeps us in the EEA and thus the Single Market for the short-term is the best we can hope for. Our longer-term aim is the abolition of the EEA as we know it, with the reconstitution of the Single Market under different management, with the headquarters moved out of Brussels to Geneva.
Doubts about the practicality of this come mainly from people who have not read (or understood) Flexcit and, amongst that sub-group, there are many who dispute that the idea is at all practicable, couched in terms of the EU never permitting it.
Yet, entirely of its own volition, Brussels has ceded legislative authority over vehicle construction and safety, and on vegetable and fruit marketing standards, and is now a law-taker in these spheres. It has not made new laws here for many years.
Add to this the WTO TBT and SPS agreements, and the Vienna and Dresden agreements on standards, and we see that much more of the Single Market acquis has been ceded to regional and global organisations – to say nothing of the global nature of financial services legislation.
Totally under the horizon, we have also seen the emergence of a systematic process for standard-setting, via UNECE's WP.6, which has the support of the EU and the participation of all EU Member States. For a post-Brexit UK, this would be the obvious – and effective – forum for cooperation on standards setting, keeping the UK full in the loop on developing the Single Market.
Such matters, though, are totally above the "pay grade" of the average journalist, most of whom are still wittering about the "loss of influence" and "fax law" if we take the EEA option. The idea that Norway could actually have more influence, rather than less influence outside the EU, is totally beyond their grasp.
Eventually, we suppose, some of them will catch up – but the process is painfully slow. Issues we were writing about three years ago have still to be settled by the legacy media and many of the politicians, who seem stuck in their own laborious version of Groundhog day. At least, in the film, the loop came to an end. There is no certainty that it will do so in real life.
Perversely, we see in The Times Matthew Parris complaining that: "The British disease is now rank ineptitude", writing that, "whatever the trade or profession it seems to be considered bad form to root out the stupid and the incompetent". Significantly, though, he does not include journalism in his list of failing trades.
Then we get the likes of Nigel Jones in the Telegraph telling us that the Leave majority in the Conservative party should set aside their differences with Ukip, and working with Ukip's new leader Paul Nuttall to mount a grassroots campaign to press the Government in the direction of the EU's exit door, with a view to achieving a "clean break".
Clearly, Jones has not noticed that there is not a fag paper between the position of the Tory Right and Nuttall's Ukip, which now has Gerard Batten for its Brexit spokesman calling to ditch Article 50 and repeal the European Communities Act – exactly the stance taken by John Redwood.
As we begin to see in Nuttall another of those Walter-Mitty figures with extremely ambiguous CVs, one would have thought the best option for the Conservatives would be to put as much distance between them and Ukip as they possibly could.
Little did we think for all those many years when we have been dreaming of leaving the EU that, when the great event finally came, the driving force would be the incompetence of the major players – from ministers who don't know the basics, to MPs locked in their private miasmas of ignorance, and a legacy media which inhabits a different planet.
One can only hope that, deep within the bowels of government, there are people who do know what they are doing. But if there are such people, they are keeping themselves extremely well-hidden.
Saturday 3 December 2016
Sky News is telling us that the EU’s customs union "covers the 28 EU states, as well as Turkey, Monaco, San Marino, Andorra and non-EU UK territories such as the Channel Islands".
There is, however, a problem with that assertion: it's wrong. Furthermore, it is very easy to ascertain that it is wrong – not least because the European commission helpfully provides the necessary details.
On customs unions, the Commission is especially helpful, providing a web page which gives a strong clue as to its content, with the give-away title of "EU Customs Union".
There, it tells us that the 28 member countries of the EU form a single territory for customs purposes – known as "the customs territory". That includes some (but not all) dependent territories, so it brings in the French colonies of Guadeloupe, French Guyana, Martinique and Reunion Island. It also includes the Isle of Man and the Channel Islands.
Also, Monaco is considered to be part of the EU's customs territory, specifically because of its special relationship with France. It does not, as yet, participate in the Single Market (in common with the Channel Islands).
Incidentally, the UK Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus are also deemed part of the EU customs territory, but three areas which are decidedly not part of that territory are Turkey, San Marino and Andorra.
These, the Commission informs us have between them negotiated three entirely separate customs unions with the EU, each of them standing alone as separate agreements, such as this with Andorra.
A point to make here is that if I can look this up on the Europa website, so can Sky News. And that organisation has vastly more staff, resource and money than I do, and has no excuse for getting such detail wrong. It is wholly irresponsible for it to allow such basic errors through the net, as it will be used as a source of information by others.
But this is all part of the sloppy, low-grade attitude to facts displayed by the legacy media in general – which drove Pete to point out that the state broadcaster is just as bad, unable even to distinguish properly between the Single Market and the customs union. Lost Leonardo notes their confusion over the EU and EEA, observing that they were barely able to play catch-up.
And such details are important. With Brexit, more than in virtually anything else in the public domain, the devil is in the detail and if the media are not up to speed on the fundamentals, then they won't be able to pick up ministers and other politicos when they get it wrong.
A case in point came yesterday
when trade minister Greg Hands spoke to Bloomberg, telling the news agency that it was possible for the UK to seek a deal which would allow sections of the economy to remain within the EU's customs union after Brexit.
Officials, Hands said, would be able to choose the type of products to be covered by agreements. "You can choose which markets, which products the customs unions affect and which they don't, so there isn't a binary thing of being inside the customs union or outside of the customs union," he said.
In the Bloomberg report
, he elaborates, saying that there were many models of customs union, where states group together to agree common tariffs for trading with external partners. The minister gave the example of the Zollverein. It was never "stuck in one place" as to which goods were covered and which weren't, he asserted. "These things can be multifaceted and dynamic".
Yet the man is, of course, talking nonsense. In the 1830s, there was no WTO and currently, under its rules bilateral sector-specific deals (as between the EU and UK) would be considered to be discriminatory under WTO rules.
That is not to say that sectoral deals cannot be made. They can – as in the 1997 WTO Ministerial Declaration
on Trade in Information Technology Products (ITA). This had a group of 40 governments, including the US, Canada and the (then) EU Member States, cutting customs duties on computer and telecommunications products beginning on 1 July 1997, with the intention of eliminating them altogether by the year 2000.
The point is that such limited agreements must be concluded under the aegis of the WTO and be open to all comers. This applies to all what are termed "plurilateral" agreements, such as the 1980 Agreement
on trade in civil aircraft.
The only other get-out is where any individual sectoral agreement is one of a sequence, with a defined timetable, leading up to a comprehensive trade deal (including customs unions). This was how Switzerland
managed its bilateral agreements with the EU, relying on the exemptions allowed
for preferential trade agreements.
The essential element of these agreements, though, is that they must cover "substantially all the trade between the constituent territories", thereby preventing precisely the scenario claimed by Hands, where: "You can choose which markets, which products the customs unions affect and which they don't".
Basically, you can't do that. Hands should know that. His department should know that. The media should know it. Instead, we get the BBC ignoring that error and repeating the Sky News error, saying: "The customs union includes all 28 EU nations, but also Turkey, Monaco, San Marino, Andorra and non-EU UK territories such as the Channel Islands". It also repeats the canard that [all] these countries are (by virtue of the customs union) barred from doing bilateral trade deals with other countries.
What is particularly ironic is that the BBC, in all its arrogance, runs a series headed: "Brexit: All you need to know". Yet the very last thing you will get from them and the media generally is reliable information.
For all its resource and noise-making capabilities, the media is a disgrace. As Lost Leonardo says, it doesn't have what it takes.
Friday 2 December 2016
Reuters have picked up and embellished the story
that most of the media were running with all day yesterday, reporting that Chancellor Philip Hammond says that Britain needs to keep open the possibility of continuing to pay fees to the EU even after it leaves.
This was after Brexit minister David Davis, in answer to an oral question in Parliament, had said that Britain would consider making payments to the EU after it leaves, if that was necessary to achieve the best possible access to the Single Market.
Hammond is cited as saying: "We have to look at any deal in the round ... and I think David Davis is absolutely right not to rule out the possibility that we might want to contribute in some way to some form of mechanism".
Despite a sharp reaction from the likes of Peter Bone and the squealing of anguish from the Brexit morons, this was always going to be a possibility – verging on certainty.
Needless to say, the loudest squeals have come from Ukip, with their new Brexit spokesman, Gerald Batten, saying: "David is already going weak at the knees. It is ridiculous to offer to pay to trade with the EU. Every country in the world has access to the single market".
But there is a lot more to this than Batten's simplistic nostrums – the man who wants to ignore Article 50 and go straight to the repeal of the European Communities Act.
As it stands, none of the Efta/EEA countries pay for market access. They pay grants in aid to help the emerging economies of Eastern and Central Europe and they pay for participation in decentralised agencies and programmes.
But there is also the question of what might be termed "legacy payments". These we deal with in Monograph 3, pointing out that, at the very least, we will have to honour the MFF commitments, which means that we will be paying a sum equivalent to our net annual payments until the end of 2020.
For that, we can barter participation in the decentralised agencies and programmes, so the net effect on expenditure will probably be neutral.
It is the next MFF programme that is going to be really interesting, when the RAL kick in and the "colleagues" demand the UK "share" of repayments, on top of agency and programme contributions. As Booker observed, with our own payments to farmers and others we could end up paying more overall than we are now.
The media far and wide, however, are casting this as a "concession", as if there was any choice in the matter. Short of a cold, hard Brexit, though, we are going to have to pay something to the EU. The only question will be how much we will have to pay.
What we are seeing in the responses is the media and politicians playing catch-up, as they are right across the board.
Only now are pundits getting to grips with the idea of a transitional deal, and the need for an end game, while many remainers, having rejected the idea of the "Norway option" before the referendum are now embracing it with zeal.
The payments issue, though, is likely to be particularly sensitive, given the rash claims made by Vote Leave and their fellow travellers. Arron Banks has called Davis's words "incredibly foolish".
Yet, the foolishness comes in failing to recognise and acknowledge that the UK cannot expect a cost free exit from the EU, and walk away from long-standing treaty commitments without offering something in the way of compensation. To refuse to accept this simply isn't practical politics.
Over the next few months, even running to years, we are going to see a lot of this – silly, shallow people like Banks, who have no grasp of the realities of international relations, making their facile statements. Meanwhile, the business of grown-up politics will have to continue, simply because it must.
That, in the end, is going to drive the outcome of the Brexit talks. The government is going to have to "concede" certain issues because, unless it does, there simply won't be a workable settlement. The pundits will just have to catch up as best they can.
But the same reality will have to drive the "colleagues". With the latest immigration figures just in, they will have to recognise that the UK government will not be able to agree a settlement that does not involve some real concessions on freedom of movement.
But then, there are no constants in this ever-changing political kaleidoscope. We heard yesterday, for instance, that Hollande was not going to stand for a second term as French president. This comes as no particular surprise but it confirms that there will be at least one new face at the table when the negotiations start.
When those talks do finally start, there will be something else at the table – something which is currently missing – a sense of reality. The parties will agree because they must agree. Meanwhile, the noisemakers will do what they do best – make noise.
Thursday 1 December 2016
Recently, and many times on his blog, Pete has been writing of what amounts to a crisis of competence
Although there has to have been a time when they weren't wall-to-wall drooling imbeciles, in his latest piece, Pete surmises that – possibly as a consequence of having handed over so many functions of government to the EU – our representatives no longer have the mental capacity to perform their functions.
One MP (or many) determined to demonstrate that this is the case is Peter Lilley who, last Sunday had published in The Sunday Times a piece on how we should leave the EU.
His conclusion was that "our main objective should be a speedy conclusion", to which effect his idea for Brexit was straight out of the Redwood school. Aiming to bring the issue to a head before the French, German and Dutch elections, we should, Lilley wrote:
… simply announce that we will continue to give EU imports tariff-free access - unless it chooses to impose WTO tariffs on us, in which case we will reciprocate. The onus would then be on the EU 27 to continue free trade or take the blame for triggering tariffs on their exports to their biggest market. Continental governments threatening this would face the wrath of German car makers and unions, French wine growers, Dutch horticulturalists and so on for initiating an unnecessary tariff battle in which they lose more than we do.
The stupidity of this – for a man who is reckoned to be one of our brighter MPs – is beyond measure. If we leave the EU without a trade settlement, we will afford ourselves the status of a "third country" in relation to the EU.
This means that we place ourselves outside the tariff wall, whence goods exported to the EU Member States will automatically attract the prevailing duties. This is not something the EU does. It is something we
will do by virtue of turning ourselves into a third country.
Furthermore, under WTO rules, the EU must levy MFN rates on all third countries without discrimination. If it gave preferential access to the UK outside the framework of a formal trade agreement, it would have to concede the same to all other third countries. This, it would be unlikely to do, as it would damage its trade policy.
On the other hand, if the UK opens up its markets, tariff-free, to the EU – outside the framework of a trade deal – under WTO rules, it must remove tariffs completely for all other countries – thereby removing any incentive any country might have to sign a free trade deal with us.
The point about all these matters, though is that we've explained them many times – not least in our Monograph series, which Mr Lilley claims to have read. It is not something special or made up. This is basic WTO law. But Mr Lilley thinks he knows better
. And he has no need of evidence. As one of the chosen ones, he evidently feels he has a right to make wild assertions and be believed.
What is particularly tiresome about such people is that they all tend to adopt the same polemical strategy. For instance, when John Mills
was confronted with the prospect of negotiations taking a long time, he argued that, after Norway rejected EU membership in 1972, the Norwegians negotiated a trade deal with the EU in just under eight months.
Never mind that this agreement was 113 pages long, including schedules. The substantive treaty was six pages. It was a very basic treaty, dealing with a very limited range of products, concerning tariff reductions. And never mind that the treaty was replaced in 1994 by the EEA Agreement – which took from 1984 to 1992 to agree.
Thus we have Lilley argue that the government's claim that the process would take 10 years should be consigned to history. The two years laid down in article 50 is a maximum. It need not take that long, he writes.
He goes on to tell us that negotiating to join the European Economic Community took barely two years. That was far more complex than leaving: we had to introduce VAT, implement existing European law, replace Commonwealth preference and much else. Furthermore, he adds, the North American Free Trade Agreement (NAFTA) took only 14 months to negotiate.
The thing is, it doesn't actually take very much to show how dishonest this strain of argument is. For instance, the UK accession negotiations were carried out in two tranches, 1961-63 and then 1970-72. Much of the ground-breaking work was completed in the 1961-63 period, dusted off and carried over.
In between, as we now know, President Pompidou had decided as early as the Hague Summit in 1969, long before the second phase of the negotiations had begun, that Britain's accession could no longer be resisted by France. Thus, when the second phase began, it was already pre-ordained that they would succeed.
Not only is this hardly the case with the Brexit negotiations, we also know of the '70-72 period that our chief negotiator Con O'Neil famously took the line "swallow the lot, swallow it now", as the approach to the negotiations, in order to expedite proceedings.
As for VAT, this was introduced in the 1971 Budget by Anthony Barber. It did not impinge upon the negotiations. We were then negotiating a treaty which, with all the protocols and additions eventually came to 200 pages. By contrast, the current consolidated treaty
runs to 410 pages – more then twice the length.
As to NAFTA taking "only 14 months to negotiate", this is misleading. Such agreements do not come out of the blue – there is always a lead-up to them, which is an essential part of the process.
In this case
the impetus for NAFTA actually began with President Ronald Reagan who in 1984 gained Congress approval for the Trade and Tariff Act. That gave the President "fast-track" authority to negotiate free trade agreements more freely.
The Act led directly to negotiations with Canadian Prime Minister Mulroney, culminating in the Canada-US Free Trade Agreement, signed in 1988. Meanwhile, Mexican President Salinas and President Bush began negotiations for a trade agreement between the two countries. Into this, the Canadian agreement was folded, making it a trilateral agreement which then became NAFTA.
NAFTA was finally signed into law by President Bill Clinton on 8 December 1993, effectively taking nine years for the entire process to come to fruition.
Part of the game-playing by people such as Lilley, though, is to make the Article 50 negotiations appear much less problematic than they actually are, and this is one of the techniques.
Another technique is the "straw man", misrepresenting the nature of the options available. Thus, according to Lilley, "three options" have already been ruled out by government: remaining in the single market; remaining in the EEA like Norway or staying in the customs union. Never mind that the EEA option is an EU-free Single Market option. He doesn't want you to know that.
In his assessment that leaves "only two realistic outcomes for Britain's future trading relationship with the EU". Either, he writes, the UK and EU 27 continue trading freely with each other without tariffs. Or we both apply to imports from each other the same World Trade Organisation (WTO) tariffs that we currently apply to the EU's biggest trading partners. Both options, he asserts, "are pretty simple and better than our present situation".
And there speaks a man only of tariffs. Like so many of his ilk, non-tariff barriers simply do not exist. They are not mentioned at all in Lilley's dissertation.
It is here that Pete's crisis of competence kicks in. Lilley spends a goodly proportion of his piece writing about financial services passporting, and a little about services, but nothing about non-tariff barriers.
Yet it is not possible to talk sensibly about Brexit options without discussing how this issue is going to be addressed. Trying to do so is like acting as if the Single European Act, the "completion of the single market" by 1992 didn't exist.
That, albeit unspoken in Lilley's current piece, is actually part of his scenario. He would have it that other countries can trade with the EU without being members of the Single Market, so there is no reason for us to remain in it.
The point he evades is that most other countries have some form of trade agreement with the EU, agreements that suit their own trading situations. The UK is in the Single Market – that is our "trade agreement" with the EU. If we leave it, we need to negotiate an alternative, and one that gives us access to Member State markets on much the same terms.
But that is not in the Lilley scenario. He would have us, in his own words, bring the issue to a head before the French, German and Dutch elections. That means concluding our exit settlement by April next year – one month after Mrs May plans to invoke Article 50.
His whole scenario isn't just unrealistic. It's plain stupid. And this is from an MP who sits on the Brexit Select Committee, supposedly scrutinising the Government's plans. On this form, he isn't even qualified to scrub the floors in the committee room. For that, you need an NVQ – more of a qualification than is necessary to become an MP.
Wednesday 30 November 2016
After the Second World War, as national boundaries were restored in Europe, customs posts sprung up at the borders (like the one illustrated at Saarbrücken, between France and Germany). Tariffs were levied on much of the cross-border trade.
Then in 1957, for the Six, along came the EEC. Its founding document, the Treaty of Rome, established the mechanisms to create a customs union. This was to abolish tariffs at internal borders and set a common external tariff, where goods coming into the Community all attracted the same rate of duty.
The customs union was complete by 1968, two years ahead of schedule. But that did not mean the abolition of customs controls – not by any means.
By the early 1980s, however, customs checks were still common at internal borders, despite the completion of the customs union in 1968. By 1984, the European Commission was despairingly reporting thus:
Last year a Belgian journalist rented a van and loaded it up with some old furniture that he wanted to take to a holiday house that he had just bought in the South of France. He drove to the frontier and was eventually allowed to cross an hour and a half, 15 signatures and half-a-dozen forms later. The import of second-hand furniture into France for a holiday home ('Do you have proof of ownership, sir?') is perfectly legal, and not subject to any tax or duty. But all the old French customs procedures still exist. The red tape involved in transporting an old wardrobe is the same as for a load of computers or fifty barrels of poisonous dioxin waste from Seveso.
Customs formalities were taking an average of 80 minutes per lorry. Each hour's delay cost between £2.50 and £3.25. The overall cost of customs controls was therefore in the region of £1.7 billion (at 1980 prices) – between 5-10 percent of the value of the goods transported across frontiers.
In the February that year, a go-slow by customs officials on the Franco-Italian border brought the system to crisis point, when French lorry drivers mounted a strike in protest, blockading roads and paralysing commerce. After two weeks, riot police and soldiers had to be mobilised to clear the roads.
At Community level, the response in June 1984 was for the Fontainebleau European Council to agree in principle to abolish customs and police formalities at the Community's internal borders.
On 13 July 1984, the French and German governments took the step towards attaining this objective, signing the Saarbrücken Agreement at the Saarbrücken-Forbach border crossing point in symbolic Goldene-Bremm area. This bilateral treaty – completely outside the framework of the Treaty of Rome and its customs union - committed the two nations to reducing checks and establishing joint control points.
The following year, on 14 June 1985: Belgium Luxembourg and the Netherlands joined with France and Germany to build on this initiative, signing the Schengen Agreement. The five countries committed themselves to the gradual abolition of checks at shared borders and to facilitate the transport and movement of goods at those borders.
The theme was further developed in the White Paper on the completion of the internal market, also published on 14 June 1985, when complete abolition of frontiers was proposed.
This was adopted in the Single European Act on 9 September 1985. Article 13 added measures to establish the internal market - "an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty".
With the target of eliminating internal frontiers by 1992, in the interim, exit checks at Community internal frontiers were to be abolished when goods were transported between two Member States. Formalities were to be confined to the office at the point of entry, avoiding much of the duplication and delays that were still occurring.
Amongst other things, this report furnishes evidence that border controls were still an issue in the late 1980s, 30 years after the signing of the Treaty of Rome. It also demonstrates that the abolition of frontier controls came with the creation of the internal market, rather than with the customs union.
Despite this, if we fast forward to April of this year and we can see the Treasury Report which assessed the impact of leaving the EU.
Amazingly, this report asserted that the Single Market had created a customs union within the EU – a gross historical inaccuracy, then wrongly claiming that the customs union, "means that there are no customs checks on trade within the EU".
Not content with just these errors, the Treasury went on to assert that: "a common external trade policy is an inherent and inseparable part of a customs union", allowing the false claim that membership of the EU's custom union would prevent the UK making its own trade deals.
Post-referendum, these errors were repeated by the Financial Times on 26 July, creating a narrative which supposedly revealed internal conflict in the heart of government.
It had Dr Fox, the current international trade secretary, wanting to pull out of the customs union, to give him "maximum freedom to negotiate new trade deals around the world", while the Treasury wanted to stay in, to avoid businesses being faced with customs controls and mandatory paperwork when exporting to the EU.
Such conflict is loved by the media, which has picked up the false narrative and run with it to this day, with not even a hint of critical analysis or any attempt to check the veracity of the claims.
Thus, we have produced Monograph 16 on leaving the customs union. And what emerges from this is that the conflict is not real. The restriction on negotiating trade deals stems not from the customs union but from the EU's common commercial policy and its exclusive competence over international trade agreements.
On the other hand, while the removal of physical barriers to the free movement of goods within the Community is an adjunct to the customs union, it is not dependent on it. The abolition of frontiers came with the Single European Act in pursuit of developing the internal market, so the customs union is an irrelevance in this respect.
To that extent, the customs union issue, and Britain's membership of it, is a red herring. The media conflict is spurious and has nothing to do with the substantive issues relating to Brexit. The question of membership should never have arisen. It should be a given that we leave the customs union when we leave the EU.
However, it seems that the capacity of the media to chase down red herrings is unlimited. But this one really should be given a decent burial.
Tuesday 29 November 2016
So opposed to the "Norway option" was Peter Wilding, director of British Influence, that in February of this year – well before the referendum
- he invited the Norwegian Europe minister, Vidar Helgesen, over to the UK to tell us how awful it was.
We got the usual low-grade BS from Helgesen, with him telling us that British Eurosceptics often say the Norwegian experience is evidence of how a country outside the EU, but enjoying the benefits of the single market through membership of the EEA, can prosper without having to commit itself to full membership.
Helgesen, on the other hand, said that this arrangement often created frustrations and difficulties, which meant Norwegian ministers and officials spent a lot of time – sometimes without success – trying to find out what was going on in EU meetings that would affect their country directly.
"We [Norway] are fully integrated into the EU single market as members of the EEA, but what we don't have is the right to vote on those regulations that are incorporated into our law when they are made by the council of ministers", he added.
On occasion, Brussels has sprung surprises that the Norwegians could not predict. The same kind of frustrations could well face the UK. "You would not have all those Brits staffing the commission where the decisions are made", said Helgesen. "Britain being on the outside would obviously not have that amount of people on the inside. You would find it more difficult, as a result, to affect the regulations".
On the back of this, Wilding roundly declared: "Eurosceptics who peddle the myth that Norway is the best [model] for a non-EU Britain are deceiving the British public. They say leaving leads to more democracy and security. This is nonsense".
In full spate, Wilding then said: "We now have the Norwegian Europe minister himself telling us to get a grip, get real and get involved in shaping Europe. Little England cannot be an option".
But now, a mere eight months later, this same Mr Wilding is so convinced of the merits of belonging to the EEA that he is preparing a legal challenge
to the government to decide whether it can withdraw from it.
Wilding's rabidly "remainer" campaigning platform has now morphed into a "pro-single market think-tank" and has hired lawyers to argue that leaving the EU does not automatically take Britain out of the European Economic Area (EAA), in which the single market operates.
They will claim that the decision to take the additional step must be decided by parliament separately from any vote to trigger Article 50, the mechanism for exiting the EU.
British Influence has written to David Davis informing him it is seeking a judicial review of that position. It warns that the government may be in breach of the law if it seeks to take Britain out of the EEA along with the EU without clear legal justification.
"We believe the government has not understood how we leave the EEA, and has not understood that we do not need to leave the EEA in order to respect the red lines the 23 June referendum established", Wilding says. "This is not about stopping, thwarting or delaying Brexit, but getting a smarter Brexit that delivers for the UK and doesn’t destabilise the continent of Europe".
Interestingly, British Influence invokes Liechtenstein, saying that it has used some provisions of its EEA membership to limit free movement of people. Its lawyers will argue that Britain could also use these provisions to satisfy the demands of those who voted for Brexit to limit immigration.
The argument hinges on whether Britain joined the EEA as a member of the EU or in its own right. Lawyers are focusing on the case of Croatia, which acceded to the EEA nine months after joining the EU, to prove that the two entities are separate.
They will argue that to leave the EEA, Britain must separately trigger Article 127 of the EEA agreement, in addition to Article 50. Article 127, which Wilding calls "a game changer", requires members to give 12 months' notification to leave without reference to Article 50, while Article 128 says that countries acceding to the EU "may" apply to join the EEA but are not compelled to.
Actually, this argument is very thin indeed, making this a false move
by Wilding. We dealt with it at length in October
, arguing that the EEA Agreement was quite evidently a treaty between EU Member States and Efta States. To be a party to the Agreement, the UK must either be a member of the EU or Efta.
Failing this, the other members can invoke Article 60 of the Vienna Convention on the Law of Treaties, and eject the UK. Article 60(2) entitles, in the event of a material breach of a multilateral treaty by one of the parties, entitles the other parties by unanimous agreement to terminate the treaty in the relations between themselves and the defaulting State.
In practice, it would be very hard for any state to participate in the EEA unless it was either a member of the EU or Efta, as the management of the Agreement is conducted via the institutional frameworks of both organisations. That would allow the parties to terminate the Agreement on the grounds of "the impossibility of performing a treaty" (Article 61), or the parties may prefer Article 62, citing "a fundamental change of circumstances".
For once, though, we're not on our own
on this. The media's all-purpose "leading authority on European law has also poured cold water on Wilding's thesis. This is Jean-Claude Piris, a former head of the European council's legal service.
"The UK's withdrawal from EU will mean an automatic cessation of its membership of EEA as an EEA-EU member", he says. "In order to become an EEA member you have either to be an EU member or an Efta member". Thus, the UK would not be able to remain in the EEA unless, on withdrawal from the EU, it rejoined Efta.
The crucial point then, which would be much more interesting for Wilding to explore, is whether the UK participation in the EEA Agreement would then automatically lapse, requiring the government to re-apply, or whether we could claim continuity.
In the latter event, this could be very helpful as the UK could then unilaterally invoke Article 112 (safeguard measures) to impose restrictions on the free movement of persons – without requiring the assent of any other party.
Needless to say, a Government spokesman dismissed the challenge, saying: "As the UK is party to the EEA Agreement only in its capacity as an EU Member State, once we leave the European Union we will automatically cease to be a member of the EEA".
Nevertheless, continued EEA participation is possibly the best option
for a trouble-free extraction from the EU, which makes it all the more perverse that the lunatic fringe
is objecting to it, and absolutely bizarre that those who most strenuously opposed it are now supporting the idea.
Welcome to the topsy-turvy world of Brexit were, as Booker ventured over the weekend, the most serious barriers to a smooth exit from the EU comes from the Tory eurosceptics – as well as their fellow travellers in Ukip.