Brexit: marching to the top of the hill

Sunday 29 November 2020  

In yesterday's piece I recorded the fond hopes of the Telegraph that a breakthrough on fishing could be close in the EU-UK talks.

It is a measure of the volatility of the issue, and perhaps the lack of realism on the part of the newspaper, that in just 24 hours its mood seems to changed completely. It is now reporting a warning from Downing Street that Britain could be "just seven days away from leaving the European Union without a trade deal".

Needless to say, one could be troubled by that assertion – that we are "seven days away from leaving the European Union". Maybe the Telegraph hasn't noticed that we actually left on 31 January but then an organisation that used to employ Johnson as a writer cannot claim to have the best possible grip on reality.

Even if one takes it that the paper really meant to refer to the end of the transition period, that isn't until the end of December, in just under five weeks. So even the "seven days" is a bit iffy. On balance, it is probably trying to tell us that it thinks that the negotiations currently at hand might break down within a week.

All the same, there is a sense of fin de siècle about all this, as we confront the repetitive cycle of talks over the same issues, despite the Telegraph's optimism. And, after ten months of talks, the same "significant gap" exists on fisheries.

Such is the change of mood, though, that Number 10 is asserting that, "No deal is arguably underpriced", a variation on a theme of "no deal is better than a bad deal", one presumes. But the comment is taken to mark a toughening of the UK's position.

The paper – doubtless with the same degree of diligence that it crafted its earlier report, has "multiple sources" in the UK government saying that the talks are likely to be concluded by next weekend, with one source saying that they should be resolved "one way or another" this week.

Oddly enough, it is the turn of the Sunday Times to be optimistic, telling us Brussels is putting "pressure" on Barnier to conclude a deal, with von der Leyen being "quite helpful" and "keen to unblock things".

She has, we are told, sent one of her most senior officials, Stephanie Riso, to assist Barnier. Riso was part of Barnier's team during the Brussels negotiations with Theresa May's government and is seen as someone who can help to find a solution.

If that is the case, she certainly has her work cut out, as the Telegraph is picking up on the "risible" EU offer of an additional 15-18 percent fish quota to be allocated to the British in their own sovereign waters.

Ministers are said to have expressed "scorn" on the offer, with another UK government source saying that it shows how far apart the two sides are. Adding that "the EU side know full well that we would never accept this", he says that "There seems to be a failure from the Commission to internalise the scale of change needed as we become an independent nation".

And now, it seems, Scottish fishermen (fisherpersons?) are the one community in Scotland who are actually in favour of the London government. Elspeth MacDonald, chief executive of the Scottish Fishermen Association, has said that the EU is behaving "like the bully who steals your lunch every day and expects the UK to be grateful for a few crumbs he hands back".

Dismissing Barnier's offer as "paltry", she said the EU had to "wake up and smell the fish", rejecting the idea that negotiators could offer to give the UK fish "of which we now the legal owner".

With that, those pesky "sources" are making it clear that "the UK team will not settle for anything less than a great deal for UK fishing communities that guarantees for the first time in nearly 50 years that we have control over our waters". They add: "If the EU don't move we are prepared to leave the transition period on Australia terms".

They hope that the EU will come up with some fresh thinking, with a source "close to the negotiations" dismissing attempts to date, "because what we've seen so far doesn't cut it".

To add to the litany of woe, the Observer has decided to match the Telegraph in the pessimism stakes.

This paper, however, has "scepticism" residing in the EU camp, with Barnier not even prepared to give seven days to the effort. He has told his colleagues that he is prepared for [only] four more days of make-or-break negotiations.

This time, we get "EU sources", who say there is a growing feeling that the lack of progress and the need to prepare businesses for the repercussions of a no-deal "British departure from the EU" made it unwise for negotiations to continue beyond then.

And there we have it again – a "British departure from the EU". Hey folks! We left on 31 January. This is about ending the transition period without a deal. What is it with British journalists on this?

But we're nevertheless getting the consistent message that Barnier has been advised by officials in the European Parliament that arranging for sufficient scrutiny and a consent vote by MEPs, before the end of the year, would be difficult without a deal by Wednesday.

Unlikely though it might seem, we're told that an "extraordinary sitting" of the EP has been "pencilled in" for 28 December. I really don't see that happening. But there is a "worst-case" option of the deal being provisionally applied and a vote being held by the EP after the end of the year, if further time appears useful. However, we are told that this option is not currently being considered.

Drilling down deeper into what is going on, Barnier is said to have expressed his dismay to EU ambassadors that the UK was still claiming that the EU-Canada trade deal offered precedent for its negotiating demands. He describes progress on "level playing field" provisions as "ephemeral", with one week's progress constantly at risk of being undone by the next.

This is a sort of "Grand Old Duke of York" strategy, where the negotiators are marched up the hill one week, and down again the next, getting nowhere at all. But as long as the UK is pretending that it wants a Canada-style deal, while demanding more and offering less, and the EU is making clumsy proposals on fish, there really isn't much room for manoeuvre.

And, on top of everything else, even if the two sides do manage to agree, there is the ERG waiting in the wings, which has made clear that it will vote against the legislation if "UK sovereignty" is compromised – not that any of them have expressed any clear indications that they know what the term means.

So here we are again, a few days closer to an infinitely moveable deadline, that has had us in the last chance saloon for over a month, with no better idea of where we are going than the last time the subject was addressed. If it does end on Wednesday, it will not be a moment too soon.

Also published on Turbulent Times.

Richard North 29/11/2020 link

Brexit: the cesspit of England

Saturday 28 November 2020  

The Telegraph seems to think that a breakthrough on fishing could be close with the EU set to formally recognise British sovereignty over UK waters.

Brussels, we are told, has also accepted a British proposal for a transition period on fishing rights after 1 January, but there is no agreement on how long it should last or how it should work. The transition is to give the UK time to build up its fleet to catch its increased quota, and EU fishermen more time to adapt to a smaller share of the fish in UK waters.

This, apparently, is a "tentative compromise" and "senior government figures" are telling the Telegraph that they believe that this is a prelude for the EU to cave to other British demands on fishing in the coming week of intensified negotiations in London.

The transition period is not new, though. Frost is said to have offered a transition period of up to three years in September, but the EU is understood to want a much longer timeframe. Some "sources" say that the EU wants at least ten years, although the situation in ongoing negotiations is still "extremely fluid".

Specifically, there is no agreement over whether officials should agree now what happens after the end of the transition period, or whether they negotiate that during the period itself. Furthermore, there is no agreement on what the transitional measures should be and if they should build towards an end state or be standalone.

The UK, is taking the line that future arrangements should be negotiated during the transition period. On the other hand, the EU is pursuing a stance that it has taken consistently throughout the talks, wanting any fresh negotiations to apply to the trade deal as a whole.

This strikes at one of the main points of contention, with the EU seeking to bundle the agreements into one package, while the UK insists on separation to prevent cross-sector retaliation in the case of disputes.

Bluntly, this does not look as if a deal is about to be reached, or that there is going to be a meeting of minds any time soon. And then there is the outcome of Barnier's meeting with fisheries ministers, which must also be factored in.

The Telegraph dispenses with this issue fairly swiftly, saying that the EU had offered the UK the return of 18 percent of its own fish. Unsurprisingly, a British source has "dismissed the offer" - which had already been rejected once before - as "derisory". It is not hard to see why.

On the other hand, EU sources are said to be claiming that the UK is demanding an 80 percent increase in quota. UK sources says that this "misrepresents" the British position.

The Financial Times goes big on this bit of the story, after it had been covered by RTE, retailing roughly the same information as the Telegraph but at somewhat greater length.

There is none of the optimism in the FT though, which suggests that the UK's dismissal deals "a blow to hopes that the two sides can secure a post-Brexit trade deal in coming days".

This, of course, could be a "darkest hour before dawn" stunt, the two sides painting a black picture as a prelude to an eleventh hour agreement. Just to keep his backbenchers on-side, Johnson has to have a deal which looks hard-fought and gives away as little as possible.

If the current spread is 18-80 percent (with the split between species not specified), that would seem to leave the way open for a 50-50 split as a compromise, with further room for manoeuvre on the transition period. In the way of things, an agreement could come together very quickly – especially if it has been stage-managed.

There again, this could represent a genuine sticking point, from which neither side is prepared to retreat. In the theatre of last-minute negotiations, there is simply no way of telling. We are being told what the parties want us to know, the intended effects of which are known only to them.

However, the other outstanding issues – on level playing field and governance - have also to be resolved. According to Barnier, the same "significant divergences" persist. He has told EU ambassadors that the virtual talks this week have been "largely fruitless", with the two sides mired in disagreements over sticking points that have dogged the negotiations for months.

In sharp contrast to Frost, who is saying that "a deal is still possible, and I will continue to talk until it’s clear that it isn't", Barnier has observed that, "The conditions for an agreement are not there". Both sides agree, however, that there are only "several days" left to find a deal. Wednesday is being cited as the "final, final" deadline, but that probably means just about as much as one of Johnson's promises.

Interestingly, although the liar-in-chief is ready to speak with von der Leyen, a British government "insider" (which makes a change from a "source") says that no contact between the pair is expected over the weekend. That could mean that they are holding back for a final bit of theatre later in the week, or it could mean exactly what it says – no more, and no less.

EU ambassadors, though, seem to be leaving nothing to chance. They are urging the Commission to come forward with no-deal contingency measures to protect sensitive sectors such as air transport and road haulage from disruption in the event that talks fail.

With that, there is nothing much more new to say. In the absence of hard information, some newspapers are padding out their stories, recycling old copy, and the Guardian has published a sniffy editorial on the "Brexit endgame", one of the many which can't seem to cope with the idea that we left the EU at the end of January.

Nevertheless, the paper wants us to dump the "clean break" myth, arguing – probably correctly – that Britain has years of negotiations with Brussels ahead. The question for Johnson, it says, is not how to break relations even further, but when to start repairing them.

Actually, that really is being optimistic. Johnson has neither the capability nor the understanding necessary to craft a halfway satisfactory deal with the EU and, even if he wanted to, his idiot backbenchers wouldn't let him.

It is not even certain that if the man does agree a "skinny" deal over the next few days, that his own party will give him an easy ride, leaving Mr "take back control" to turn to Starmer for support. But whatever deal we do end up with – if any – it will not be until Johnson has gone that we'll be able to have any meaningful talks with the EU – even if then.

And, if Kent is reconciled to becoming the "toilet of England", Westminster is already the cesspit, with emptying long overdue.

Also published on Turbulent Times.

Richard North 28/11/2020 link

Brexit: law is good, but panic is better

Friday 27 November 2020  

It is possible to imagine that a sense of glee prevailed in the Independent offices when it posted this piece telling us that the EU-UK trade talks were "in [a] fresh crisis", with Downing Street officials admitting that they don't know "if EU negotiator Michel Barnier will turn up for face-to-face talks due to resume on Friday".

Asked if Barnier was expected in London, the spokesperson said: "That is a matter for the EU and a decision for them to take". But when approached by the Independent, Barnier's office said it was currently unable to confirm his travel plans.

However, the BBC is adamant that face-to-face Brexit trade talks will resume in London this weekend – based on information from apparently willing, although anonymous "EU sources". I'm beginning to wonder whether there are any EU officials left, below the top ranks, who actually have names.

Anyhow, there may not be a lot of difference between the Independent and the BBC, as the BBC has roped in a "senior EU figure" – no less – to suggest that the talks "could be brief".

One is not informed as to whether a "senior figure" is superior to a "source", or whether either is more authoritative than an "office", but we have to take what we can get. Perhaps they are all one and the same person, even doubling as our androgynous extra-terrestrial.

On the other hand, there is Tony Connelly - who is believed not to be an extra-terrestrial. He has been broadcasting to all and sundry (which is unsurprising since he is definitely a broadcaster) that Barnier has called a meeting of fisheries ministers from eight coastal states, including Ireland, for some time today.

This meeting is to be held by video conference, so it is possible that Barnier could host it from London, although one suspects that he will not be patching Frost into the discussions. Nevertheless, at least one paper is suggesting that this " may signal breakthrough" in the talks, which Irish Minister for Foreign Affairs Simon Coveney describes as "very, very difficult".

Happily, we are assured that the force is "very, very strong" given how enormously disruptive the end the transition period without a deal would be. Perhaps they should try working it out on the walls of Dublin Castle with light sabres. It would certainly be a lot more entertaining.

Connelly also tells us that Minister for Agriculture Charlie McConalogue has said he is concerned that a "significant number" of agri-food companies are not prepared for Brexit, which is a bit of a shame as that happened quite a few months back. That aside, Charlie wants businesses "to take steps to ensure they can continue to trade with the UK after 1 January", which would be fine if they knew what steps were necessary.

HMG is certainly doing its bit, having published revised guidance on "Trading under WTO rules" – to be activated from 1 January "if there is no UK trade agreement".

Readers will be comforted to learn that the page on trade agreements "will be kept updated". For the moment, though, they will be highly impressed with the intelligence that: "From 1 January 2021, the way you trade with some countries will change". From what we are told, this might be news to some people – especially extra-terrestrials.

According to Reuters, though, some British businesses are only too well aware of what faces them. These are the ones who are rushing to stockpile goods, with just five weeks of the transition period left.

Jon Swallow, director of Jordon Freight, tells Reuters that the consequence " is there's simply not enough capacity and the prices are going through the roof". He adds that demand had pushed prices up by around 20 percent in recent weeks and further rises were likely in December.

Fellow freight specialist Tony Shally says his company, Espace Europe, has seen the cost of journeys between Poland and England, and Northern France and England, rise by more than ten percent.

But, along with the rush to bring in goods, companies are also having to prepare to deal with customs declarations. Sam Harris, operations manager at provider Freight UK, says it had become a full-time job just to answer the phone to new customers. "Most know nothing about customs", he adds. "Everyone is panicking".

We get a similar take from Chris Goodfellow, managing director of Locker Freight. He has told his staff to stop fielding calls and only process emailed requests, after they struggled to serve existing clients. "I don't believe people were burying their heads in the sand", he says. "They had just been overwhelmed by what had gone on (with COVID-19) and when they realised that Brexit would still go ahead as planned, panic started to set in".

That is not to say that some businesses have not been burying their heads in the sand. After I did the story in 2017, Booker followed shortly after and I did it again two years later, the Express has woken up to the story, framing it in the typical manner of the legacy media around the personality of Lewis Hamilton.

In and amongst the personality trivia, however, it manages to quote Chairman of Motorsport UK David Richards, who "warned last year that a no deal Brexit could see Mercedes walk away from Formula One" He says that that Brexit will "not make life easier" for teams based in the UK" and adds: "I have been surprised that the teams haven’t been overly-concerned about it".

"For some months now, Toto Wolff (Mercedes Team Principal) is the only person that has been very clear on the problems", Richards says. "If we get a no deal Brexit, the early part of the season is going to be very challenging for all the teams, and I don't think some of them have fully considered that yet".

It was actually in February last year that Wolff went public, and has since described Brexit as the "nightmare scenario". He also said that the changes about to come in place could hand Mercedes' rivals Ferrari an advantage. "Brexit", he warns, "is a major concern for us and should be a major concern for all of us who live and operate out of the United Kingdom".

For others, it won't matter whether they adopt the ostrich position – they can't prepare anyway. That seems to be the fate of some banks and financial services, who have been told that EU assessments of whether to grant market access will not be completed in time for January.

The last word for the moment, though, must go to John Shirley, a freight forwarder who has been brokering trade through Dover for 25 years. He tells Sky News that he foresees chaos, and a potential supply crisis.

He says the UK has no chance of recruiting enough customs agents and clerks to handle the volume of paperwork that will be required, and points out customs currently only has the resources to check one percent of vehicles. He predicts interruptions to food supplies and manufacturing, not caused just by delays, but by European drivers reasoning that it is no longer worth diverting to the UK.

"We're using words like petrified, terrified", he says. "We don't use words like that. We are a pretty hard bitten business, we lurch from crisis to crisis, but we share the view that the hauliers are taking that the sensible thing is not to come here at all. That's what we are being told in no uncertain terms".

"There's a shortage of drivers across Europe", Shirley says, "and they like to do a round trip in a week. In the east, it can take ten hours to get into the EU in the first place. If it is going to take you days to get back out of the UK and you are stuck here rather than driving it will not be worth their while".

The BBC, though, illustrates its story with a picture of a solitary sandcastle on the beach not so very far from Dover (pictured). I suppose the subliminal message is that, if you can't panic, then build a sandcastle and stick a couple of flags in it. It won't solve anything, but it might make you feel better.

Also published on Turbulent Times.

Richard North 27/11/2020 link

Brexit: trust is good, but law is better

Thursday 26 November 2020  

So, von der Leyen speaks, and the world listens. "These are decisive days for our negotiations with the United Kingdom", she says. "But I cannot tell you today, if in the end there will be a deal".

We've been at this "game" since 29 March 2017, which makes more than 3½ years of negotiations. And, days away from the deadline, von der Leyen says, "I cannot tell you today, if in the end there will be a deal".

The interesting thing, though, is that we were warned – by that self-same von der Leyen. On 8 January of this year, she was in London delivering a speech to the London School of Economics, when she had some home truths to say.

"Without an extension of the transition period beyond 2020", she said, "you cannot expect to agree on every single aspect of our new partnership", adding: "We will have to prioritise".

Giving fair warning, von der Leyen went on to say: "With every decision comes a trade-off". The European Union's objectives in the negotiation are clear, she emphasised. "We will work for solutions that uphold the integrity of the EU, its Single Market and its Customs Union. There can be no compromise on this".

The same day, Johnson met the Commission President, telling her he was ready to negotiate a Canada-style Free Trade Agreement. This, he apparently defined as "a broad free trade agreement covering goods and services, and cooperation in other areas".

However, a Downing Street spokesman confirmed that, during the meeting, Johnson was "clear that the UK would not extend the Implementation Period beyond 31 December 2020".

And here we are then, days away from December, and von der Leyen's prediction is coming true. At the very least – assuming we do end up with an agreement, it won't fulfil all Johnson's ambitions for services and there will be very little coverage of "cooperation in other areas". The need to "prioritise" will give us no more than a "bare bones" agreement, if indeed we get even that.

As it currently stands, von der Leyen is telling us that "there has been genuine progress on a number of important questions: on law enforcement and judicial cooperation; on social security coordination".

Furthermore, she says, "on goods, services and transport we now have the outline of a possible final text. In these areas there are still some important issues to agree, but they should be manageable".

However, much to the surprise of no-one at all, von der Leyen informs us that there are still three issues that can make the difference between a deal and no deal: the level playing field, governance and fisheries. "With very little time ahead of us, we will do all in our power to reach an agreement. We are ready to be creative".

But here we get the repetition of the warning she gave back in January: "We are not ready to put into question the integrity of our Single Market" she says. If nothing else, the Commission has been entirely consistent on this. We've had it multiple times from Barnier, and from Juncker when he was Commission President. We cannot say we haven't been warned.

And this is why, von der Leyen says, "we need to establish robust mechanisms, ensuring that competition is – and remains – free and fair over time". In the discussions about state aid, she adds, "we still have serious issues, for instance when it comes to enforcement".

Despite the hundreds of hours devoted to the negotiations, she says that: "Significant difficulties remain on the question how we can secure – now and over time – our common high standards on labour and social rights, the environment, climate change and tax transparency".

Says von der Leyen: "We want to know what remedies are available, in case one side deviates in the future", then coming up with a nice turn of phrase: "Because trust is good, but law is better". Obviously, with the UK Internal Market Bill in mind, she says that: "in light of recent experience: a strong governance system is essential to ensure that what has been agreed is actually done".

Concerning fisheries, we are firmly told that no one questions the UK's sovereignty on its own waters. But, she says, "we ask for predictability and guarantees for our fishermen and women, who have been sailing in these waters for decades, if not centuries".

That's possibly her weakest point, given the genesis of the CFP and the way the UK has been treated over the decades, but I doubt whether she's even been told the full version of what transpired during the accession negotiation, and during the development of the CFP.

However, she's the one in a position to know what she's talking about when she says that "the next days are going to be decisive". She assures us that the EU "is well prepared for a no-deal-scenario" – in so far as anyone can be - but prefers to have an agreement.

But then she reminds us (and Johnson in particular), if he is even capable of listening, that whatever the outcome, "there has to be – and there will be – a clear difference between being a full member of the Union and being just a valued partner".

All this is straight from the horse's mouth, as delivered to MEPs at the European Parliament yesterday, and if Johnson doesn't want to read the transcript, there are also the UK papers, many of which are running reports of her speech.

Additionally, the likes of the Financial Times and the Guardian are conveying to us remarks attributed to Barnier. According to an EU official, Barnier had told Frost this week that there was little point in the EU side making the trip to the UK capital if there was no sign of movement in the talks. The EU's chief negotiator is said to be "frustrated", by the lack of progress, adding that the negotiations were like "talking to people who don't care about having a deal".

On the other hand, we are told that "allies" of Johnson (whatever that means) insist there is "no drama" or any sign that talks are about to break down. But there is an expectation that the prime minister will have to intervene, with more talks with von der Leyen. No date has been set.

However, Johnson will also be conscious that his backbenchers still have the potential to cause trouble, with the European Research Group warning that it will vote against any deal "if sovereignty is not preserved".

This may not be fatal to his short-term plans if Starmer's Labour decides to support any implementing legislation, but it could have implications for his continued tenure as prime minister if he agrees a deal that makes too many concessions.

One Eurosceptic source says: "If a large body of Tory MPs branded it BRINO and voted against the Tory party [then] Boris is toast". But, he then goes on to say: "They know that and so presumably will avoid it".

This, though, is far from Johnson's only pressure point. US president-elect Joe Biden has also been in action, stressing that the border between Northern Ireland and the Republic of Ireland must remain invisible. "The idea of having a border north and south once again being closed is just not right", he says. "We've just got to keep the border open".

To add to the joy, the European Securities and Markets Authority ESMA has confirmed that EU rules will continue to apply to some UK branches of EU investment firms, putting pressure on them to move out and trade elsewhere.

On top of the frozen sausages law (completely misunderstood by the Mail), the fact that the UK still isn't listed as an approved "third country" for the live animals, foods of animal origin, and other products, and the Office of Budget Responsibility warning that a no-deal will cost a packet, Johnson has more than enough to keep him busy.

Johnson must be yearning for the simpler days of 2017, before he became prime minister, when he was able to tell the world : "There is no plan for no deal because we are going to get a great deal". But, like the man himself, that hasn't aged well.

Also published on Turbulent Times.

Richard North 26/11/2020 link

Brexit: a taste of things to come

Wednesday 25 November 2020  

Yesterday at Dover we have seen a taster of what happens when third country controls go into effect and it looks much like we anticipated. Various individuals writing in The Spectator, Telegraph and Spiked told us it could not happen, but here we are watching it all unfold the only way it could.

What we are looking at, however, is only the tip of the iceberg – the most visible symptom of our departure from the EU regulatory sphere. The true impact will not be known or fully understood until well into next year by which time it will be too late.

This, though, is not a function of Brexit. Through Efta EEA it was entirely possible to maintain frictionless trade and regulatory stability. Collectively, the nation, or rather its politicians, failed to recognise this.

There are various theories as to what killed "soft Brexit", but really it was a death by a thousand cuts. The sticking point for Brexiteers being that EEA would have entailed a variant of freedom of movement, and though we could have negotiated a fairer system under the EEA agreement, nobody was thinking that far ahead.

The issue, though, is a by-product of the central dilemma of Brexit. You can have trade or sovereignty, but not both. This is not the first or the last time this dilemma will cause shifts in geopolitics.

On this, there was very little the EU could have done being that any immediate concession would have created a situation where a country enjoys single market preferences without freedom of movement, which might well have made departure look more attractive to others.

Here, though, the EU should have recognised that freedom of movement was largely an asymmetric benefit and it was not without its problems. And no point did the EU show a willingness to contemplate reform. Thus, with nothing in between an EU style FTA and EEA membership, the weight of opinion on the winning side would always dictate that Brexit must end freedom of movement.

But that wasn't the only thing driving the push for "hard Brexit". The Tories have long been imbued with the idea of regulatory independence, failing to grasp the utility of regulation in trade, the gravity effect and the so-called Brussels effect, which really makes any idea of Britain as a global independent regulatory power thirty years late at least.

Thus Britain has chosen to freeze itself out of its closest and most important markets in the middle of a global pandemic and when the Brexiteers no longer have an ally in the White House. Though the UK has successfully rolled over many of its important trade agreements, we've left ourselves high and dry where it comes to nearly half of our trade, and even if a deal is secured by January, our trade in services seem to have been brushed aside as an irrelevance, believing the City to be infinitely resilient.

There are all manner of delusions underpinning Tory thinking; an overestimation of Britain's trading prowess and an underestimation of the EU’s regulatory influence. It perhaps isn't as bad as remainers would have it but it's still pretty bad. Come January, the government will be well outside of its comfort zone dealing with problems even the pessimists never anticipated.

One can take a more stoic point of view, believing it will all come right in the end, and that is a view I’ve maintained since voting to leave, but we have embarked upon a precarious venture with no plan, but more troublingly, a serious competence drought. A year into the pandemic and Johnson has lost his political authority while his party is up to its neck in allegations of sleaze. It may come right in the end but the end is a long way away and January is only the end of the beginning.

In recent months, the Brexit wars on Twitter and elsewhere have gone into deep hibernation – with catatonic boredom having set in and no new material to go on, but as the consequences gradually reveal themselves over the next year, the Brexit wars will take on a new lease of life, revitalising old disputes and re-energising the arguments. There may be no undoing what has been done, but nobody can claim ownership of what comes after. The Brexit mandate is spent.

Though Covid will undoubtedly cast a long shadow on our politics, the legacy of Brexit will last far longer. Though there is much grumbling about civil liberties and poorly drawn parallels with Orwell, having to wear a facemask round Tesco for ten minutes until sometime next year comes nowhere close to the deep and lasting consequences of a botched Brexit, particularly as the delusion of the Tory right collapse one by one.

In fact, nobody is going to be happy. Remainers won't be happy for obvious reasons, but Brexiteers won’t be either. They already consider the withdrawal agreement a betrayal and will say the same about any trade deal with the EU. Moreover the swamp will not be drained, immigration won’t be under control and the "green crap" will keep coming. It will soon become clear that the Brexit movement was not strictly to do with leaving the EU, rather a desire to reclaim government from centrist technocratic managerialism. Brexit alone was never going to do that.

Consequently, if anyone though the Brexit wars were over, and something we could simply sweep under the carpet as we attempt to rebuild our trade, they are sorely mistaken. Brexit has long since rolled up the culture wars which continue to rage unaffected by Covid. Those divisions exposed by the vote in 2016 are in no way on the mend nor has anything in particular been done with a view to reuniting the country.

Since 2016, we've seen an array of weak "levelling up" initiatives, but it does little more than replace the same ineffectual regional spending we saw from the EU. You don’t need political x-ray vision to see the green revolution as more of the same stimulus flimflam we’ve seen from every government since Mrs Thatcher. Moreover, it is not going to plug the holes created by our departure from the single market. The culture gap and the wealth gap will widen considerably.

It may be that we are about to enter a permanent state of political dysfunction. The ousting of Jeremy Corbyn seems to have done little to improve Labour’s fortunes. Labour has clawed its way back to party in the polls but only by way of a government bogged down by its incoherent Covid measures. Keir Starmer must still face down the far left or watch his party disintegrate. In the meantime, we stumble from one Tory coronation to the next as we suffer yet more rudderless liberalism.

Perhaps in a decade or so, the ground will be sufficiently fertile for a new political insurgency, but with the Brexiteers having squandered their credibility and their political capital, and Farage long having lost his vitality, it's hard to say where it will come from. Though the Brexit revolution may have hit the rocks, the same creaking, ossified establishment still clings on to its old habits and public attitudes to politics can only worsen as it refuses to learn the lessons.

At this point, though, the very worst thing that could happen is for things to stay the same. If, for all that we've been through over the last five years, and will endure in the next ten, politics doesn't change then we might well be forced to conclude that voting doesn’t work – and contemplate other means.

Also published on Turbulent Times.

Pete North 25/11/2020 link

Brexit: waiting time

Tuesday 24 November 2020  

It is seven years since I wrote in the first draft of Flexcit that leaving the EU was a process, not an event, a sentiment repeated in the current edition, where I also write of my draft that "it provides a template for the next twenty or so years of our national development".

Never, ever, was it the case that Brexit was going to be a short-term process and the estimate of twenty years was optimistic. One only has to look at Switzerland to see that third country relations with the EU are ongoing, spanning not years but decades.

One almost despairs, therefore, when one reads the likes of this in the Telegraph, where Brussels correspondent James Crisp writes that "Brexit will drag on for years", as Brussels is reportedly considering asking for a 10-15-year review clause in the trade deal and fishing agreement.

We can hardly disagree when he writes that "Brexit has never been a finite process", as he states that "future governments will circle endlessly, repeating the same never-ending 'brexistential' dramas over sovereignty, nationhood and trade".

When he thus concludes that "Brussels has an almost limitless capacity for boredom, repetition and detail but British officials will have learnt from their baptism of fire in the UK's first trade negotiation in 40 years", and that "it is not for nothing that Michel Barnier, the EU chief negotiator, calls Brexit a 'school of patience'".

The only remarkable thing is that it seems to have taken Crisp so long to come to this conclusion, and that he – or anyone else for that matter – ever thought any different, especially those who thought we could sign up for an instant deal and be done with it.

Logically, it makes total sense that, having spent more than 40 years reaching the current state of integration with our EU neighbours, we were not going to unravel the arrangements in a hurry. And this is why it always made sense to go for the Efta/EEA option as a halfway house, giving us (and businesses) a chance to adapt.

The trouble is that the moment there is the slightest concession to reality, the media starts squealing in a most disagreeable way, as with the Mirror which reports the same news under the headline: "EU accused of wanting to pick apart a Brexit trade deal within a decade".

The media, however, cannot be held entirely to blame as its headlines reflect the response from the Johnson administration, as it is said to be "set to resist the attempt". Thus, we get Johnson's spokesman saying: "We want a simple, separate fisheries framework which reflects our right under international law".

That sounds seductively simple, and therein lies the problem. There are no simple solutions to complex problems – except, perhaps in the mind of the current prime minister. Given all the ramifications of the fishing issue – and the emotional connotations – a resolution was never going to be easy.

In some senses, therefore, the EU proposal seems quite neat, kicking the can down the road a sufficient distance to take the issue off the table for the time being, allowing the other, less contentious issues to be resolved.

Another of the EU's strategies is to insist on a single, overarching structure for any deal, rather than the UK preference for a series of stand-alone deals. There are merits, of course, to either option, which probably explains why there has been such a battle over which path to take.

From the UK perspective, stand-alone deals mean that we escape the "tyranny" of nothing is agreed until everything is agreed. We could, for instance, sign a deal on aviation without it being dependent on us reaching an agreement on fishing quotas. We also escape the Swiss "guillotine" trap, where default on one deal automatically terminates the others.

The EU, on the other hand, reasons that once a framework deal is agreed, with common governance structures such as dispute procedures, it is easier to administer and it is much simpler to plug in new sectors over time, allowing the relationship to mature and expand, with the minimum of disruption.

In this, though, the EU is not only looking at Brexit. It is looking at the long-term and its need to simplify the myriad of agreements with neighbouring states. It is very conscious that concessions to the UK, which take it in the wrong direction, could set precedents which are exploited in a way which would set back Brussels' long-term aspirations.

Through following the ins and outs of the EU-UK negotiations over the years, it does not seem to me that the UK is always (or ever) aware of the constraints on the EU. The UK is looking at a deal from its own perspective, but Brussels must always be looking over its shoulder to see how any agreement inter-reacts with the other deals it has made – as well as its impact on existing members.

This is why May's original plan for a "deep and special partnership", which was to be of "greater scope and ambition than any such agreement before" – written into her Article 50 letter - was never going to fly.

Less than a month after that letter, Merkel was addressing the Bundestag, emphasising the UK, as a third country, "cannot and will not enjoy the same rights or possibly be better off than a member of the European Union". Unfortunately, she added, "I have a feeling that some in the UK are still delusional about this".

Equally delusional is Johnson, calling for "nothing more complicated than a Canada-style relationship", evidently without the first idea of what that agreement actually entails. Although ostensibly asking for less than May, he is offering far fewer concessions than Canada, while expecting more from the deal. This also isn't going to fly.

Given Johnson's declared stance, on fishing and other matters, it is hard to see how an agreement can actually be reached. Nonetheless, after his self-isolation, Barnier is rejoining the talks and remains optimistic that a deal can be reached. But how much of that is simply part of the blame-avoidance strategy, it is hard to tell.

However, Taoiseach Micheál Martin, is also optimistic, taking the view that an outline of a Brexit deal could be reached by the end of this week, despite both sides still complaining that "fundamental differences" remain.

One thing for sure, with the positive news about Covid-19 vaccines, there is hope of an end in sight for the UK epidemic, possibly as early as spring. This is good news and bad news for Johnson. The good news is that it gives the economy – which has proved remarkably resilient - a chance to recover.

The bad news is that Covid will not necessarily provide cover, to conceal the adverse economic effects of a no-deal Brexit. And, with the Bank of England governor warning that the cost of a no-deal scenario would be bigger in the long term than the damage caused by Covid-19.

Personally, I am always a little suspicious of long-term economic forecasts, which have a tendency to be wrong – and especially in this case as there are too many imponderables. But the potential political effect of this warning rather puts Johnson on the line. If the prime minister does opt for a no-deal, and the projections are even half-way correct, the damage to his diminishing credibility could be terminal.

Bearing in mind that the effects will not be evenly spread – as with rumours of a shut-down of the Nissan plant in Sunderland (since denied) – the electoral impact for the Tories might be disproportionate if it turns the newly-acquired "Red Wall" seats.

Nothing quite focuses Tory minds like the prospect of losing an election and while there are some years to run before we go to the polls, nervous MPs could still exert an influence on No 10.

Yet, for all that, we're still none the wiser as to what the immediate future might bring. Johnson is quite capable of blowing it at the last minute, but he is equally capable of conceding a disastrous agreement and going to the country telling everybody how "fantastic" it is. The man is truly that much of a moron.

So, as always, we wait and wait. They also serve who stand and wait, we used to be told. There may not be a lot of serving going on these days, but there is certainly a lot of waiting, especially when it comes to roadside toilets.

Also published on Turbulent Times.

Richard North 24/11/2020 link

Brexit: ratification complications

Monday 23 November 2020  

In between putting the story of a dead f*****g dog on its front page, complete with photograph, the Mailygraph also manages to find space for a report about the latest developments (minimal) on the EU-UK talks.

There, at least we are getting a little (minimal) sense over the ratification of any treaty, and some confusion. The paper is saying that there will be little time for lawyers to draw up the final text of a deal, which is fair enough, but it then goes on to say that this is not enough time for "Parliaments of Britain and the 27 EU member states to ratify it".

While the UK Parliament could be made to sit through the Christmas break to pass the necessary legislation, the paper goes on to say, "EU member states have made it clear they would not be prepared to do so". Thus, it says. "Reports of a special sitting in Brussels between Christmas and New Year to ratify a deal have been dismissed as fanciful".

I think, in that final sentence, it's referring to the European Parliament, and that does make sense. I've consistently thought (and written) that it's unlikely that MEPs will agree to break into their Christmas hols, just to return to Brussels for a day, to approve the deal – notwithstanding that there are the committee formalities to complete.

But the paper also seems to be suggesting that the EU-27 Member States will also have to ratify the deal. This, in my view, should be the case. From what we've been told of this deal – that it includes an agreement on fisheries and security – it is a mixed treaty, which does require Member State ratification.

This possibility was rehearsed in Tony Connelly's Saturday piece, the first time outside this blog that I've seen the issue of Member State ratification raised.

Connelly himself is a little confused on the issues, which is unsurprising. They are complex and the treaty provisions are not exactly a model of lucidity. In these cases, it is often best to consult the treaty itself in conjunction with one or other of the authoritative briefing notes, such as this one from the European Parliament.

The trouble with hacks, though, is that they rarely do their own research, and usually rely on a "person with prestige" to explain it to them – which explains why they get it wrong so often.

Here, Connelly is hung up on Articles 217 & 218 TFEU, but the briefing note makes it clear that one must also refer to Articles 4 & 5 TEU, the latter stating that the Union can only act "within the limits of the competences conferred upon it by the Member States".

Where the provisions of an agreement fall outside the exclusive competence of the Union (unless subsidiarity applies), Article 4 then states that competences remain with Member States. It is from these provisions the need for Member State ratification stems.

The precise ratification status, therefore, will depend on the content of the treaty, and there is some limited wriggle room. But, on the face of it, a full-blown fisheries agreement will most certainly require Member State ratification, and if the treaty covers any matters of substance on security, then again MS ratification will be needed.

There are other complications, which we need not go into at this stage, but it is a fair guess that for this agreement, in addition to Union ratification, the Member States will also have to be involved.

The process for Member States runs to two stages. Firstly, the treaty must be signed individually by the Member States, but the signatures are subject to ratification. Thus, a signature subject to ratification does not establish the party's consent to be bound. Such an agreement cannot enter into force unless it passes through a domestic ratification procedure.

There is once exception here, in that there can be a provisional application, if provided for in the agreement and agreed upon signature. In that case, the treaty can take effect and will remain in force unless one or other of the Member States refuse to ratify.

Here, of course, ratification procedures are not uniform. They are determined separately and individually in accordance with each of the Member States' constitutional requirements. Mostly, this will require parliamentary ratification and, in the case of Belgium, regional parliaments must also be included. Remarkably, for this country, when all levels are taken into account, the agreement needs to be approved by eight parliaments.

In most of the Member States, there is also the possibility of referendums to consider. Only in Germany and Belgium are they explicitly ruled out by their constitutions. In the majority of states, they are not ruled out and, in two – France and Holland – they are explicitly allowed.

If there is any doubt as to whether the UK-EU treaty will require Member State ratification, the ultimate arbiter will be the ECJ. In the event of an immediate disagreement, the process could be put on hold until the court has ruled. This, however, would not interrupt provisional application, if agreed.

Overall, the net effect of MS ratification is to give states much more power, affording each a veto over the treaty. And it is not entirely untoward that one or other of the states could say "no". This was predicted very early on by Ivan Rogers.

And then, if Macron – or for that matter Rutte – wanted a political escape route with an unpopular treaty (with, say, the fishermen kicking off), the buck could be passed by holding a referendum. That holds out the prospect of the UK's deal being brought down by French citizens voting in solidarity with their fishermen.

Either way, the process of ratification could be significantly delayed, adding substantially to the uncertainty of an already uncertain process. Individual parliaments can take many months to go through their procedures and there is absolutely no chance of MS ratification being completed by 31 December, if it is required.

In the meantime, though, it is not even certain that there will be a treaty to ratify. Johnson is said to be preparing a "significant intervention" some time this week, talking to von der Leyen in what could be a final act of theatre once the negotiators have decided that there is a way through to an agreement.

Alternatively, he could be called upon to make concessions that Frost and his team are not empowered to make, putting him on the line if the treaty is opposed by his hard line Brexiteers.

Following any agreement at negotiators' level, the European Parliament takes the next step on the Union side but, as with May's Withdrawal Agreement, it probably won't bother until the Westminster Parliament has done its stuff.

In the UK, legislation will also be required to bring the treaty into force, which means that approval of the legislation will be taken as ratification of the treaty. That means the most urgent deadline is on the UK side. Provided a provisional application is agreed, the Union can take its time.

And that is just as well. With 23 working languages in the EU, the translators are going to be very busy, especially as each version must then be checked out by the Commission lawyers to ensure that there are no local deviations.

With all that, one can imagine that it will be some considerable time before the fat lady is called upon to sing, unless there is some glorious fudge in the making and the Commission finds a creative way of standing Union law on its head.

All we can do is watch and wait, in the one certain knowledge that nothing will be agreed until everything is agreed – unless you know otherwise.

Also published on Turbulent Times.

Richard North 23/11/2020 link

Brexit: nothing very much to report

Sunday 22 November 2020  

It's Monday or Tuesday that we were supposed to see a deal, and the Financial Times gets Peter Guilford to tell us that everyone wants a deal, so we'll get one – albeit at the last minute. Just about everybody reckons we're in the final throes and about the only new news is that we've signed up a continuity trade deal with Canada.

As to Guilford, he has "little doubt there will be a Brexit deal, although the EU's skill at playing things down to the wire is legendary". Together with Britain's apparent unpreparedness, this is causing widespread jitters in the press and on social media, and uncertainty in the economy and among businesses, yet for Brussels this is a normal day at the office.

The EU Commission's job, he says, is to broker deals between forces bigger than itself, within Europe and outside. It has nerves of steel, the hide of an ox and no fear of cliff edges.

The problem he perceives with Brexit is that the referendum was seen in EU circles as a reaction to grievances largely unrelated to EU membership. The EU assumes that, even down to the wire, London does not know what it wants — but needs to make voters feel sovereignty has been restored.

Thus, when the Commission finally puts its negotiating steamroller into top gear, it could face some surprises. But even then, Guilford thinks the Commission will be prepared for any eventuality and will have done its crisis planning – which is more than you can say for the British government.

Meanwhile, I've got to the stage with The Great Deception rewrite where I'm having to draft the conclusion, without yet knowing the ending, while leaving the last narrative chapter unfinished until I get details of the outcome of the talks.

With nothing much in the legacy media to entertain us, all we have is Nick Cohen in the Observer writing about "a Churchillian delusion" that is sustaining Brexiteer fantasies.

I doubt very much whether he appreciates the irony (he certainly doesn't mention it) of this Churchill reference, when the "Europeanists" have for many decades been calling in aid his speech in September 1946 in the Great Hall of Zurich University, as the effective launch of the movement which led to the European Union.

It was then, of course, that he declared that "we must build a kind of United States of Europe", so there is a double irony. While the "Europeanists" are happy to co-opt him as their intellectual godfather, many of them reject the idea that the EU is a proto United States of Europe. Some will even deny that that was ever the intention.

Nevertheless, it is rather off that both sides of the divide are enlisting Churchill to their respective causes, with Cohen reminding us that Johnson said during the 2016 referendum campaign that "Winston Churchill would have joined me on the battle bus".

Johnson also claimed that the EU shared "the same flawed ambition to unite Europe that Hitler pursued", pointing to what he saw as parallels between the choices that confronted "his beloved Churchill", and Britain, during the Second World War and the decision facing voters in the referendum.

Actually, Hitler never wanted to unite Europe – he wanted to dominate it and exploit it, but not unite it. His ideas of racial purity precluded that, with his thinking confined to building the greater Reich. Although some of his entourage favoured the idea of a united Europe, Hitler eventually banned any discussion of the idea.

However, Johnson did have some sympathy with the idea that the EU was a successor to the Third Reich which is why, in 2003 when he was editor of the Spectator he allowed John Laughland (author of a book which pursued that thesis) to write a scurrilous review of The Great Deception and refused to allow Booker the right of reply to correct the many errors in it.

One of the reasons why we wrote TGD was to take on the "Nazi creation myth", which was quite popular at the time amongst a growing band of Eurosceptics. Whatever the many faults of the EU, there is no evidence whatsoever to support the idea that it borrows its structure or ambitions from the Nazis, and we thought that pursuit of this thesis could damage the Eurosceptic cause.

And while Johnson obviously is happy with the role model of Churchill in 1940, putting two fingers up to Nazi-occupied Europe, this is the same Churchill who during the early stages of the London Blitz ruled that the London Underground should not be used as shelters, having armed guards posted at the entrances to stations during air raids, to prevent Londoners taking refuge.

It was only when desperate shelter-seekers swept aside the guards at Liverpool Street Station, at the height of an air raid, and the soldiers had the good sense not to open fire, that Churchill's government finally relented and officially permitted people to take shelter in the Underground.

This, of course, does not fit with the Johnsonian myth of the great leader, but then it's probably more in line with the behaviour of the man who seeks to emulate him, putting people in harm's way in pursuit of flawed policies.

But, if this is all that is preoccupying Cohen at this late stage, then we've come to a pretty poor pass. It perhaps reflects the current situation where there is little new to report, or say, on the subject of Brexit, until we get these damn talks out of the way.

Also published on Turbulent Times.

Richard North 22/11/2020 link

Brexit: losing the Union

Saturday 21 November 2020  

Almost catatonic with boredom, I don't think I can stand reading yet another article about how close we are to a UK-EU agreement, apart from the differences that remain on fisheries, level playing field issues and governance. It doesn't matter how close we are to the finish line as long as these issues are outstanding, as long as the EU continues to adopt its rule of "nothing is agreed until everything is agreed".

The big question, of course, is whether Johnson and Frost are ready to make compromises in the next few days to secure a deal, now they don't have the malign presence of Dominic Cummings uttering what is said to be his favourite refrain of "fuck 'em", every time there is talk of concessions.

To that question at present, there is no clear (or any) answer, the alternative being that Johnson and his sidekick "double down" to prove to Eurosceptics they are willing to embrace the hardest of all hard Brexits in the name of national sovereignty – whatever that means.

But what we get from the Financial Times, when confronting the choices is the observation of a senior (but conveniently anonymous) official who says: "To tell you the truth, we don’t know - and frankly, I don't think the PM knows either".

Whether the official is telling the truth, or just made it up, or whether there is indeed an official, or the FT made it up, the observation itself nevertheless has the ring of truth. It would come as absolutely no surprise to learn that Johnson didn't have the first idea of what he was doing, and even less idea of where he wants to go.

But whether or not Johnson knows, it is a matter of certainty that no one else knows what he has in store, whether the EU negotiators in Brussels or the many businesses on both sides of the Channel who are waiting for some sign to indicate what is expected of them.

With less than six weeks to go, and at least a week of that covering the Christmas holiday period, there is hardly enough time left to communicate the changes which might arise from a settlement, much less train staff and introduce the systems necessary to cope with those changes.

Wisely, many firms will be putting their operations on hold over the new year period, until they have a better idea of what is expected of them, and in a period which is traditionally marked by low economic activity, it is unlikely that we will see much of the tumult which is being so eagerly anticipated by some sections of the media.

Northern Ireland may be a special case, with warnings that many food manufacturers in GB are planning to stop supplying the province on and after 1 January.

There then remains the question of whether Irish Republic firms can pick up the slack, perhaps even taking advantage of new ferry routes direct from the continent into Dublin and other Irish ports, bringing in goods from the rest of the Single Market.

It really would be quite ironic if one of the outcomes of Brexit was to break the links between Northern Ireland and GB and to increase the dependence of the Province on its southern neighbour and the rest of the EU.

It might then only be a matter of time before the euro was the dominant currency in circulation, with traders and their customers not bothering to convert back to sterling for as long as the local economy comes under the gravitational pull of the eurozone.

That this might happen has, of course, been long predicted, with the possibility that this could, in the fullness of time, lead to the reunification of the island, possibly with a federal structure that kept Stormont in business.

Then, there is even a possibility of Scotland strengthening its economic ties with Ireland, and distancing itself from England which, with what some see as the inevitable independence of Scotland, could give rise to a hard border between the north of England and the Scots.

Unthinkable though this might have been even a few years ago, the unthinkable is now dropping into the realm of being distinctly feasible, leaving open the question of whether an independent Scotland would then, on its own behalf, join the EU as a fully-fledged member.

With that, we would see the break up of the United Kingdom, the upside consolation being that England would once again become a nation state and the Westminster parliament would become mainly an English parliament – or totally so if the Welsh also sought independence.

With a population of just over three million, Wales itself could qualify as a member of the EU – it would by no means be the smallest state in the Union, which would put England in the "interesting" position of being an independent state, surrounded by EU/EEA members – albeit with the Channel between us and our southern neighbours and the North Sea to the east.

That would give us some similarity with the Swiss Federation, which has managed to prosper outside the EU/EEA grouping, although with extensive treaty arrangements with the EU and freedom of movement provisions which extend to the EU and other Efta members.

Ironies start to multiply if it ends up that we have to accept similar free movement provisions in order to seal the deal on a more comprehensive trading agreement than we are likely to get through Johnson's efforts.

And now that we're almost there, with talk of the "skinny" deal under consideration being very little better than a no-deal scenario, it is a matter of certainty that this will not be the final word.

Whether it is Johnson in person who goes cap-in-hand back to Brussels, or his successor, we cannot say. Nor can we guess at a timescale, other than to say that any additional negotiations will need to be sooner rather than later.

The guess is, though, that Johnson will do a runner once people realise what a total Horlicks he has made of Brexit, pleading the need to make millions out of after-dinner speaking, international conferences, and book advances. Come 2024, if the Conservative Party has not already self-destructed, we might see a newly invigorated Labour move their man into No 10 and open up negotiations with Brussels.

The ironies by then will be stacking up to Everest-scale proportions, if the final, more durable Brexit settlement is determined not by Johnson's conservatives (in name only), but by Labour, whence the deal will look very different from anything the Brexiteers might have imagined, conforming very closely with their worst nightmares.

But, if that comes to pass, it will not be a surprise. It was always going to be the case that an extreme version of Brexit was going to be unsustainable and, therefore, unstable – meaning that it could never be the last word. By going too far out on a limb, the Brexiteers may end up with nothing other than the break-up of the United Kingdom.

The one thing that is unlikely, however, is that we ever rejoin the EU – for the one simple reason that I can't ever see it wanting us back. But a new treaty – much overdue – may create an "associate" category, rationalising the Efta/EEA arrangements, and the likes of Ukraine and Turkey.

That would open the way for England to become a semi-detached member of the EU, on very much worse terms, and with considerably less leverage than it might have had if it had gone for the Efta/EEA option when we left the EU.

Inevitably, all this is speculation and, like Johnson, we have no real idea what is going to happen, other than to say that the bigger the mess he makes of Brexit, the narrower our options will become.

That leaves us the final irony in that the man who would be Churchill ends up closer to my namesake, not losing the Americas but the United Kingdom, leaving one Union to confront the destruction of the other. As legacies go, at least that will be remembered in the history books, although not for the reasons Johnson would have wanted.

Also published on Turbulent Times.

Richard North 21/11/2020 link

Brexit: a recipe for chaos

Friday 20 November 2020  

You might think that him (or her) up there didn't want the EU and the UK to make a deal, given the latest obstacle thrown in the way of a successful conclusion.

But just as we were gearing ourselves for a wonderful Wagnerian ending, with the fat lady singing her socks off on either Monday or Tuesday – albeit celebrating an extremely "skinny" deal – up pops Mr Covid and fells one of the negotiating team.

As a result, we learn, face-to-face talks between Barnier and Frost have been suspended, although the teams – sans the infected one – will continue their work for the time being.

I am not sure that Frost's comment in response to this embodies the best-chosen words, when he says that he will stay in "close contact" with Barnier about the situation. One would have thought that "close contact" was the very last thing they had on their minds.

Nevertheless, despite the infelicitous phrasing, we get the point that the development is a "big complication" and something of an obstacle for the negotiations as deadlines continue to slip.

But it's not only Frost who is using the wrong words. "EU sources" are saying that Barnier will have to quarantine for ten days, until 29 November, under Belgian law, but that he and Frost will "remain in constant contact". All they had to do is substitute "communication" in exchange for "contact" and the message would have been robbed of its ambiguity.

From the look of it though, the fat lady wasn't going to sing anyway, and has been stood down for the duration. Barnier is expected to hold a video conference today with EU ambassadors, when he is expected to tell them that negotiations are still deadlocked on "philosophical" differences over the "famous three".

In other words, nothing much has changed, which really makes you wonder what the negotiation teams are doing all day when they are facing each other in the same room. This has the stuff of a magnificent sitcom, along the lines of Yes Minister. They could call it Non Monsieur.

At least with a disease emerging in their ranks, the parties have actually got something to talk about, with a UK government source – another nameless wonder – practicing his (or her – its?) understatement, perhaps auditioning for the new show.

The situation, this source says, is "not ideal", leaving officials to scrabble round, trying to establish who, if anyone, from the British team would be required to quarantine.

"It's complicated by the fact that you have two different sets of public health rules in the UK and Belgium", they say. The UK's quarantine requirement is 14 days. Ideally, I suppose, we need an EU intervention on this, which raises some rather interesting questions.

When SARS was recognised as a pandemic disease in 2003, after an outbreak in Guangdong Province, China, the EU had already acquired powers to set up a network for the epidemiological surveillance and control of communicable diseases.

However, these powers were relatively weak and, when in 2004 the EU established the European Centre for Disease Prevention and Control (ECDC), based in Solna, Sweden, its role was largely advisory, issuing guidance to Member States.

Having made the same mistake as the UK in focusing on pandemic influenza to the exclusion of SARS. Nonetheless claiming in 2007 that Europe was "the best prepared region in the world for the next pandemic", it has since presided over the policy train-wreck that has characterised the EU's approach to managing Covid-19.

Yet, as always, poor historic performance was merely a prelude to "more Europe". On 11 November 2020, the Commission proposed a new regulation on "on serious cross-border threats to health", setting out "a comprehensive legislative framework to govern action at Union level on preparedness, surveillance, risk assessment, and early warning and responses".

What had previously been a matter of cooperation between Member States under the guidance of the ECDC is now to become mandatory – a typical application of Monnet's community method, which is quite obviously alive and kicking.

However, since the UK will shortly be outside the regulatory orbit of the EU, we will be unaffected by this regulation, and free to make our own mess of managing Covid-19, which our government has been doing with uncommon verve.

In exercising our fabled sovereignty, we can exercise our right to have different quarantine periods, continuing to steal a march over the evil continentals by having a 14-day lockdown instead of ten. Such are the benefits of Johnson's Brexit.

That aside, with the likelihood of next week's deadline being missed, there is talk of the European Parliament not being able to ratify any deal during its plenary session starting on 16 December, so there is more chatter about an emergency session in Brussels on 28 December.

I had a look at this a few days ago and I still don't buy the idea of MEPs all over Europe breaking into their Christmas hols to fly to Brussels for a day to cast a vote. And, in any case, there are the committee preliminaries to consider.

However, never fear. The Times is on the case, being told something that we'd worked out for ourselves days ago. EU officials have told this revered newspaper that the real legal deadline for negotiations is midnight on New Year's Eve (European time, of course – 11 pm in real money).

A last-minute deal, they say, can be implemented without ratification by MEPs, on the basis of an agreement by the Council to a provisional application pending ratification by the European Parliament in the new year.

Diplomatic sources are suggesting that if continuing negotiations is politically acceptable - as may be especially the case when the delay is caused by the coronavirus - deadlines can be much more flexible.

We also learn that the expected agreement, a framework treaty containing trade, security and fishing deals, is expected to be an "EU only" deal, meaning that it does not need to be ratified by national parliaments.

But The Times seems to be a little confused, suggesting that it doesn't need ratification by the European Parliament. The paper cites a diplomatic source, saying that "Normally the council seeks consent of the parliament", adding that, "if time was running out all it takes is a Council decision to provisionally apply an EU only agreement, which is what is expected. This is fully in line with the treaties".

The point, of course, is that "provisional" application is precisely that – provisional pending ratification. The EP still has to do its stuff. Yet this diplomatic source is saying that ratification is "a political not a legal requirement". That is wrong – the paper needs to get a new, more reliable source, or read the Commission website.

And, as it stands, though, there may be other problems. Even if this is a "bare bones" deal, if it covers security and fishing, then it is not an "EU only" deal. Fishers, fisheries, excluding the conservation of marine biological resources, and the area of freedom, security and justice, are shared competences. Any such deal would have to be ratified by Member States as well as the European Parliament.

That doesn't change anything in terms of provisional application. The Council can still give its approval, but it would mean that ratification could take a lot longer. It also gives Member States a veto, which could create further problems.

But, for the moment, we have more pressing problems. If the negotiations run into December, businesses will be faced with the prospect of having only few days warning before they have to implement an entirely new trade regime. If that isn't a recipe for chaos, I don't know what is.

Also published on Turbulent Times.

Richard North 20/11/2020 link

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