Brexit: a phony deal

Monday 11 December 2017  

With excruciating slowness, the media is gradually getting the message – the "bad Friday" agreement is a crock – a phony deal. In the lead is Tony Connolly of the Irish broadcaster RTÉ, perhaps the only journalist around making a serious attempt to understand the vital technical issues.

And it is on the technical issues that Mrs May's "deal" hangs or falls – phrases like "full alignment", one which happens to form one of the crucial elements. And it was on this which Andrew Marr questioned Brexit Secretary David Davis on his chat show yesterday.

Trying to pin Davis down, of course, is something of an art form. In response to the direct question, "What does full alignment mean?", the Brexit Secretary digressed somewhat by referring to an exchange moments earlier about "no divergence".

This, he explained, "would have meant actually taking cut and paste rules" – effectively the harmonisation which is required for participation in the Single Market and anything approaching a "frictionless" border between the UK and EU Member States.

Before then moving on to answer the question, Davis kindly told us that "full alignment" only applied to "about four" important areas, "agriculture, road and rail", to which Marr added "health, tourism, transport".

Thus did he confirm the Irish times piece from Friday, which declared: "UK qualifies implications of 'full alignment' Brexit pledge", retailing an affirmation from the Mrs May's government that "we are leaving the customs union and the single market in March 2019".

Actually, the Irish Times had six heads: transport, agriculture, education, health, environment and tourism, of which "environment" – in EU terms, is a pretty hefty thing for Davis to leave out. But, nevertheless, the point stands that the UK has no intention of addressing anything like the full Single Market acquis, omitting such interesting things like car manufacture, chemicals and pharmaceuticals – to say nothing of aviation.

Even within the sectors covered, however, the application is limited. When Marr asked "in very, very simple terms", whether the EU's carrots and our carrots "will be broadly speaking the same carrots", Davis responded with "not necessarily".

The regulations, Davis said, "will be very similar" but the key parameter is "outcomes". As the Prime Minister had laid out in her Florence speech, "there are areas where we will want similar outcomes and we'll have similar methods to achieve them". Thus, said Davis, "we will meet the outcomes, we'll meet the outcomes but not do it by just copying or doing what the European Union does".

Expanding on this, Davis then asserted "there will be areas where we'll have similar outcomes, we'll have different methods to achieve them, that’s going to be true of a lot of product areas, a lot of manufacturing and so on and there will be areas where we want different outcomes and will use different methods".

As to maintaining EU regulations, "That's not what we're going to do", he declared, with a degree of finality. "We're going to bring back control. That's the phrase used and the House of Commons will decide".

As for the deal overall, to detach us further from the idea that Mrs May's government was taking things seriously, Davis blandly informed Marr that the deal "was a statement of intent more than anything else. It was much more a statement of intent than it was a legally enforceable thing".

And thereby, did he confirm precisely what I had said in my Saturday, "nothing bankable" blogpost. There are no commitments here, and there is no intent to maintain the Single Market acquis.

On this basis, the "guarantee of avoiding a hard border" is not a guarantee at all. It is a statement of intent and, without that necessary commitment to the Single Market, is undeliverable. As I noted earlier, in order to avoid a "hard border", Northern Ireland itself must adopt the full Single Market, etc., acquis - as must the UK unless there is a "wet" border in the Irish Sea.

Since Mr Davis is candidly admitting that these conditions are not going to be met, neither the Council nor the European Parliament can approve any arrangements that allows for frictionless trading. A "hard border", on the basis of what the Brexit Secretary has told Marr is a certainty.

If it wasn't the Marr Show that spilled the beans, though, there is always the Sunday Telegraph (no paywall), which retailed a claims that Theresa May's aides told Foreign Secretary Johnson and Michael Gove that "the key concession used to seal Friday's deal with Europe" – i.e., "full alignment" - was "meaningless" and "not binding". It did not, they were told, "mean anything in EU law".

Despite, therefore, Davis asserting that "the odds, as it were, against a WTO or no deal outcome have dropped dramatically", it seems more likely that we have drastically increased the likelihood of the talks collapsing, with an accidental "hard Brexit" the necessary consequence.

It cannot be the case that the negotiations can run their course, only for it to be discovered that the prospects for an invisible border have evaporated, and that there will be no political consequences. One can expect a rebellion in the Commons, with a very real possibility that the May government falls.

However, there are developments afoot which could conspire to make this the least of Mrs May's problems. Courtesy of, we have had early sight of the negotiating guidelines which Donald Tusk intends to put to the European Council on Friday.

What will immediately create waves is that their scope is "disappointingly narrow", dealing only with the transitional arrangements. On the future trade deal, the guidelines note:
While an agreement on a future relationship can only be finalised and concluded once the United Kingdom has become a third country, the Union will be ready to engage in preliminary and preparatory discussions with the aim of identifying an overall understanding of the framework for the future relationship. Such an understanding, which will require additional European Council guidelines, should be elaborated in a political declaration accompanying the Withdrawal Agreement.
This kills stone dead any idea that we will see any form of trade agreement in place by the time we leave, leaving the UK entirely reliant on reaching an agreement on transitional arrangements to tide us over, while a trade deal is negotiated. But here – although entirely expected – the terms offered are seriously bad news. The guidelines state:
As regards transition, the European Council notes the proposal put forward by the United Kingdom for a transition period of around two years, and agrees to negotiate a transition period covering the whole of the EU acquis, while the United Kingdom, as a third country, will no longer participate in or nominate or elect members of the EU institutions.
They go on:
Such transitional arrangements, which will be part of the Withdrawal Agreement, must be in the interest of the Union, clearly defined and limited in time. In order to ensure a level playing field based on the same rules applying throughout the Single Market, changes to the acquis adopted by EU institutions and bodies will have to apply both in the United Kingdom and the EU. All existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply. As the United Kingdom will remain a member of the Customs Union and the Single Market (with all four freedoms) during the transition, it will have to continue to apply and collect EU customs tariffs and ensure all EU checks are being performed on the border vis-à-vis other third countries.
What the EU is demanding is that the UK remains effectively a full member of the EU as regard the obligations, subordinate to the ECJ and Commission rulings, but without any representation in the European Council, the Council of Ministers or the European Parliament – and with no UK Commissioner. And, since the "budgetary instruments" still apply, we'll still be paying the full UK contribution.

By any measure, this is the worst of all possible worlds, the full application of "pay – no say" which the Efta/EEA option was supposed to saddle us with, in one of those falsehoods that dominated the referendum campaign.

But, having ruled out that option – where we would have had significant input in the creation of new law, and would be paying only a fraction of the contributions – and then not into the EU budget – Mrs May is confronted with the idea that we have to obey all the 20,000 laws of the acquis, and not just the 5,000 or so of the EEA acquis, most of which are technical standards which we would implement anyway.

The effect of these arrangements would, without doubt, serve to delay our withdrawal from the EU by a further two. The crisis on the border would be deferred, and trade with the EU could continue, but at the price of a Brexit in name only.

This completely negates Mrs May's pledge that "we are leaving the customs union and the single market in March 2019", and makes a mockery of any aspirations of being an independent nation, moving the timeline to March 2021 – nearly five years since the referendum.

It seems inconceivable that Mrs May or her Cabinet could find this acceptable and the Tory "Ultras" could not conceivably accept these terms at all. This is a recipe for civil war within the Tories, with the odds very high for the UK falling out of the EU in an accidental Brexit, effectively the hard Brexit by default.

On a technical note, I don't see how the transitional arrangements can be part of the Withdrawal Agreement. Under Art 50, once the Withdrawal Agreement takes effect, the treaties cease to apply to the UK. To make them re-apply needs a new treaty. That, as a detail, may come to the fore, adding further to the complications.

That apart, by the end of next week, we can see Mrs May's famous "breakthrough" being ripped apart. The drama of last Friday will be long forgotten as we are precipitated into the mother of all crises, spelling the end of Mrs May's inglorious attempts to engineer a rational Brexit.

At the very least, her stupidity in rejecting the Efta/EEA option has confronted us with a situation far, far worse, while prolonging the Brexit agony for another two years. And when those two years are over, all the problems attendant on the UK becoming a third country will re-emerge.

For the moment though, we have the bizarre situation where the Irish media are providing better coverage of the issues that the UK equivalents, with the Irish Times telling us that EU Brexit negotiators have expressed doubts about the feasibility of the UK's pledge to avoid a hard Border in Ireland after Brexit.

European Commission officials, we are told, are saying the UK's determination to leave the single market and the customs union "seems hard to reconcile" with its promise to avoid a hard Border in Ireland. 

That may well go down as the understatement of the century, but it does give some hint of the storm to come as the "bad Friday agreement" begins to unravel. Then, as Mr Blair never said, things can only get worse.

Richard North 11/12/2017 link

Brexit: reality on hold

Sunday 10 December 2017  

Reviewing the recent responses to the "Friday deal", it is quite evident that the media and the bulk of the pundits have been taken in by the theatre. The result is that there is scarcely anything in the media worth reading or listening to that hasn't either missed the point or got it plain wrong.

Nor does one have to be an out-and-out cynic to suggest that, when it comes to politicians, we should watch their hands, not their lips. Simply a little healthy scepticism is all one need ask for.

As regards the theatre, the dawn press conference after a night of make-or-break negotiations is such a cliché that one is surprised that the actors didn't get a slow handclap from the hastily assembled audience.

Where we need to be looking her, of course, is the small print. But, after several readings of the Joint Report, one can only conclude that the authors must have been using hallucinogenic drugs.

Anything of this nature that lacks essential coherence and so challenges reality cannot possibly succeed as a negotiating draft. The very lack of coherence and the inbuilt contradictions will serve to drag it down. New crises are simply a matter of timing.

In fact, the crucial document is not the Joint Report but the Commission communication. This sets out in detail the immediate negotiating parameters, pending the Council guidelines.

Next week we will see the EU's negotiating guidelines proper. Then we will begin to see the mountain facing us, and how little we have actually progressed. And it is at this point, we will realise that the UK government is not even close to a deal.

If, as expected, the focus of the next round of talks is on the transition period, then the first crisis will not be long in coming. The terms the EU is dictating amount to full conformity with the entire EU acquis - including new laws that take effect - and subordination to the ECJ.

This, in effect, will mean an extension of UK membership for the period, but without the representation . It will be the worst of all possible worlds – "pay, no say" with a vengeance. At the end of the period, we will be no further forward for having kicked the can down the road.

All the old problems attendant on our leaving the Single Market will still be there waiting for us, and the EU will have little incentive to do anything other than offer an extension.

For the moment, though, we have to go through the tedious charade of self-congratulation and misdirection, while almost everyone ignores the obvious – the crucial issue highlighted by Booker in today's column (no paywall). Simply, he says, it was in no one's interests, and especially not the EU's interest, that the talks should collapse, not least because no one on either side is yet remotely prepared for what will eventually happen when the UK leaves the Single Market.

And, when push comes to shove, it was all very well for Theresa May to say there will be no "hard border" in Ireland. But how telling, Booker adds, that she gave no hint as to how this miracle could be achieved. What we saw on Friday, therefore, was Mrs May not just them "kicking the can down the road, but the whole cannery".

And, for all that, we are still left with precisely those same problems which became inevitable when Mrs May announced in January that we were to leave not just the Single Market but also the European Economic Area (EEA). Remaining in the EEA was always the only practical way in which we could have left the EU but preserved those "frictionless" borders she said she wanted.

How telling that also on Friday morning we read of the MPs in the Public Accounts Committee slamming our "reckless" Government for its "wishful thinking" in failing to have made any proper preparations, at Dover or anywhere else, for some of the immense practical problems which will arise when border controls have to be erected on both sides of the Channel.

But for the dawn theatricals in Brussels, we might have seen the media make more of the report, especially as its findings indicated that at least some MPs (pace the PAC) are beginning to appreciate the extent of the disaster awaiting us.

Government departments, the PAC said, are assuming that the risks to managing the border will not change immediately when the UK leaves the EU, and that border checks will therefore be the same after March 2019 as they were before.

They are therefore not planning for any major new physical infrastructure at the border by March 2019, and do not expect all new or updated IT systems to be ready by that date. Departments say they are planning for a no-deal scenario, but do not expect there to be many changes whatever the position in March 2019.

The Committee went on to say that they were very concerned that the Government's assumptions are risky and do not allow for changes in behaviours by companies trading across the border or people crossing it. Particularly, it says, in the event of a no-deal scenario, the border could be exposed to risks on day one of the UK’s departure.

Officials, we were told, are relying too much on there being a transitional period in order to have the time to develop the new systems and infrastructure that may be required. The current negotiations bring significant uncertainty, but the new Border Planning Group (the Group) and government departments need to step up and be prepared for the possibility of a no-deal scenario and for the costs of all potential options.

It is worrying, the PAC then concluded, that we were told that the Group could not plan for any challenges around the Irish border and the 300 crossing points, as it needed the political process to go further before it could fully understand the issue.

This being the case, all that happened on Friday was that both sides bought extra time to prepare for the massive disruptions to trade which Mrs May's decision to leave the EEA has still in due course made unavoidable.

What is particularly weird about this, says Booker, is that we have never been given any proper explanation for that decision. We were told that remaining in the EEA would have been tantamount to remaining in the EU, when in fact it would have freed us from 15,000 of the EU's 20,000 laws, only having to obey the 5,000 relating to trade.

Yes, by wonderful irony, that is precisely what we are intending to do anyway, under less advantageous terms than would have been available. This rather makes every objection we were offered to our remaining in the EEA a caricature of the truth, clearly originating from those who had never looked intelligently or honestly at the evidence.

Instead of which we are left still chasing nothing more than that chimera of a fondly imagined but wholly undefined trade deal, which can only in some form or other give us "hard borders" and damagingly less access to our largest single export market than we have now.

And all this arose, says Booker, because Mrs May and her advisers never did their homework properly, or had any idea just what terrifyingly intractable problems this would be landing us with. If only all this could have been openly debated in that desperately trivialised referendum campaign we might not be where we are now.

The trouble is, though, we are where we are. There's little that can be done in this system to overcome high-level ignorance where issues of huge importance are decided by tiny cabals, isolated from the real world and therefore remote from the normal human interchanges which inform lesser mortals.

Interestingly, I have been reading the autobiography of Albert Speer, Hitler's architect and latterly his minister of munitions. An early member of the Führer's inner circle, he observed that the higher the ranking of Party officials, the greater their isolation and the less their knowledge of ordinary events. He also noted of some in high office that "their arrogance and conceit about their own abilities is boundless".

Much of what went on at high level in Germany during the Hitler period is special to it, but some of what Speer recounts is easily identifiable as the Dunning-Kruger effect. This is a disease of government, one of timeless effect, from the Bourbons and before, to Mrs May and her kitchen cabinet.

We talk about this in more colloquial terms as the "bubble effect" but any analogy has its limitations. There is not one bubble but many, and some are multi-faceted, with bubbles inside bubbles inside more bubbles. Not one but many transparent walls can separate the inner denizens from the real world.

In one such bubble lives our Prime Minister, taking advice and counsel from a desperately limited circle, otherwise cut off from the rest of humanity. And when those people are imbued with boundless "arrogance and conceit about their own abilities" (as is all too evident with Nick Timothy, just from the evidence of his Telegraph column), there is nothing they can learn and nothing they can be told.

The essence of the "bubble" though, is that it filters the flow of information, so that ordinary and obvious things never penetrate and low-ranking or despised sources are easily eliminated.

The media, of course, has its own bubbles, so constructed as to have filters which allow the passage of information to those in power, and between themselves, but never from those who would disturb their primary industry – the process of creating narratives. Thus the system is custom-made to foster and disseminate error.

It is unsurprising, therefore, that our leaders get things wrong and even less so that the media so often projects a joint narrative which completely misrepresents reality.

In these dark days, when so much is at stake and there is so little clarity, perhaps the only thing that will break through the multiple tiers of bubbles is the real world test of whether things keep working. To that effect, the PAC report offered rare insight – even if it was less than complete. How ironic it was that its message, issued on the same day as Mrs May's theatre, was drowned out by it.

However, facts don't go away because they are ignored, any more than does reality. Soon enough, they reassert themselves – largely because they must. Sadly, their arrival is often accompanied by turmoil and pain.

That, it seems, is the destination for Brexit. The noise level is far too high for any rational argument to survive, and is set to get higher. But, while the perpetual fudge can stave off the effects of reality for a long, long time, eventually it comes. Reality may be on hold, but it will arrive.

Richard North 10/12/2017 link

Brexit: nothing bankable

Saturday 9 December 2017  

Ostensibly committing the UK to a "soft" Brexit, the Joint Report from the EU and UK negotiators, published yesterday, actually does no such thing.

As the accompanying (but less read) Communication makes clear, "the Joint Report is not the Withdrawal Agreement". And in that one terse sentence on the first full page of the document is set the essence of Friday's dramatic "breakthrough". The "dawn patrol of Mrs May and Jean-Claude Junker shaking hands on a "deal" that takes us into phase two of the Brexit negotiations may be good theatre, but that is about all it is.

In the Communication, we are reminded that, only if the European Council considers that sufficient progress has been made in those negotiations will it instruct the European Commission to draw up a proposal for a Withdrawal Agreement. This will be "based on Article 50 of the Treaty on European Union" and will be drafted only "on the basis" of the Joint Report as well as "the outcome of the negotiations on other withdrawal issues".

The only commitment in relation to Friday's deal, therefore, is that the final Article 50 agreement will be drafted "on the basis" of it and the outcome of the subsequent negotiations. There is nothing in the Joint Report which constitutes a formal treaty or any legally enforceable commitment.

In fact, as the Joint Report takes pains to point out, "nothing is agreed until everything is agreed", a caveat that over-rides its apparent requirement that the Joint Report shall be "reflected" in the Withdrawal Agreement "in full detail".

In any event, any supposed "commitments" do not, "prejudge any adaptations that might be appropriate in case transitional arrangements were to be agreed in the second phase of the negotiations". Furthermore, they are "without prejudice to discussions on the framework of the future relationship".

Returning thus to the Communication, we find that the Withdrawal Agreement "will be concluded by the Council upon a proposal from the Commission" – on the basis of QMV – but only after "obtaining consent of the European Parliament". And, of course, it is "subject to approval by the United Kingdom in accordance with its own procedures".

Were it the case, however, that the parties sought to make the Friday (but not the Good Friday) deal enforceable, those attempts would fall foul of the simple premise in law that requires any "commitments" to be reasonably capable of execution. And, where we find the core element in the "Ireland and Northern Ireland" section (paras 42-56), there is a lack of coherence which amount to self-contradiction.

The heart of the section is set out in paras 49-50, the first of the pair asserting that the UK "remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border". Any future arrangements, it says, "must be compatible with these overarching requirements".

As a binding commitment, that immediately falls apart as its execution is subject, inter alia, to the approval of the European Council, the European Parliament and the UK "in accordance with its own procedures" – and can be swept aside by any agreements made in discussions relating to the framework of the future relationship.

Moving on, we are told that the UK's intention is to achieve these objectives "through the overall EU-UK relationship". But, unless the UK embraces measures equivalent to the adoption of the full range of Single Market rules, that cannot happen. And since this has already been ruled out by Mrs May, it isn't going to happen.

Effectively recognising that, para 49 goes on to say that: "Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland". But that brings us back into DUP territory, where no agreement is politically tenable. This option is also a non-starter.

What the Joint Report amounts to then is the latter part of para 49, which offers the fallback "in the absence of agreed solutions". Then, the UK "will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement".

This is generally taken as a commitment by the UK to adopt the Single Market and Customs Union provisions – especially as the reference is to "full alignment" - thereby banishing the prospect of a "hard" Brexit. The Republic of Ireland is thus being lauded for its actions in "rescuing" the UK.

In the event of this happening, though, we have to add para 50, where the UK "will ensure that no new regulatory barriers develop" between Northern Ireland and the rest of the UK, unless "consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland".

In all circumstances, however, the UK "will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market".

What this then amounts to is giving the power to the Northern Ireland Executive and Assembly to require the entire UK to maintain "full alignment" with the "rules of the Internal Market and the Customs Union" unless they decide to go their own separate way.

This, on the face of it, looks to be exactly what it is – absurd. The tiny Northern Ireland "tail" is wagging the huge UK "dog", forcing Mrs May to abandon her own party commitment to leaving the Single Market and the Customs Union. But, as we later learn – courtesy of the Irish Times - this is not to be.

Rather, as confirmed by a senior official at the Department for Brexit, the commitment to maintain full alignment with the "rules of the internal market and the customs union" applies only to the six areas of North-South economic co-operation identified in the Belfast Agreement. These are transport, agriculture, education, health, environment and tourism.

The official says that 142 cross-border policy areas identified by the Barnier task force were subsets of the original six, and insisted that the commitment did not undermine Britain's declaration that it would leave the single market and the customs union.

"It's the six areas. The 142 are a deeper dive across those six areas. The ambition at the moment clearly is to get cross-border trading arrangements to maintain the status quo as much as we can", the official says, adding: "There are a very unique set of circumstances that apply to Ireland that don’t apply to anywhere else in the UK. But in terms of customs union and single market membership, the UK as a whole will be leaving".

And there we confront the EU's own requirements. In order to avoid a "hard border", Northern Ireland itself must adopt the full Single Market, etc., acquis - as must the UK, unless the border moves to the Irish Sea. And since these conditions are not going to be met, neither the Council nor the European Parliament can approve them.

This alone tells us that the Joint Report is already dead in the water. It is not the basis for a serious negotiation – merely a device to keep the talks moving and to allow Mrs May to claim a much-needed "victory" in order to keep her in office a little while longer.

When Donald Tusk expresses his concerns that Downing Street "was not aware of how difficult the coming negotiations would be", he is only stating the obvious.

Mrs May has not so much kicked the can down the road as the whole cannery. But it is still there, looming on the horizon, ready to dominate phase two. In so doing, the parties have set themselves up for a fall – apparent commitments that aren't actually commitments and which cannot be implemented.

The only face-saver is the agreement to discuss the transition period, but even then the Tory "Ultras" aren't going to like what they see – full adoption of the EU acquis, subject to the jurisdiction of the ECJ without any representation. This is the worst of all possible worlds.

Then, given the chaotic nature of the Joint Report, that is the least of our problems. We have not escaped a "hard Brexit" – we have made it more or less a certainty. Even collapse is still a possibility, which makes transition academic. On present form, we'll be long gone before it can take effect.

Richard North 09/12/2017 link

Brexit: impact assessments

Friday 8 December 2017  

Given the spectacular failure of David Davis to deliver credible (or any) impact assessments, I've been asked to produce a list of sites which offer information on the impacts of Brexit. 

This comes after the publication of a House of Lords Report on the impact of a hard or "no deal" Brexit, trailed by the Guardian on the day of publication.

Without further ado, therefore, I have compiled with the assistance of readers, a list of links to relevant sites, which I append below. I will ask Pete to put up a link on the menu toolbar (above) and then add to and refine the list, to provide an ongoing resource.

If the pic looks familiar, it's one I used here, dealing with customs and related issues. Anyway, here is the list (most, but not all from EU Ref):

1. Aerospace industry and here
2. Airlines and here;
3. Airlines: Third Country Operators;
4. Air Traffic Management;
5. Animal Exports;
6. Automotive industry;
7. Bloodstock Sports (Horseracing);
8. British Standards Institute (CENELEC etc);
9. CETA and EU exports;
10. Chemicals (REACH) and here;
11. Cosmetics;
12. Customs systems;
13. Damage Assessment (Adding it up);
14. Digital Market;
15. Driving Licenses, etc ;
16. Euratom (Pete North);
17. Financial contributions (Monograph 3);
18. Financial Services (Monograph 14) and Select Committee Report;
19. Fishing;
20. Food exports;
21. Formula 1 (Racing cars) ;
22. Geographical Indications;
23. Hazardous Area Equipment;
24. Medical Isotopes;
25. Maritime Surveillance;
26. Meat Industry;
27. Passenger Lifts;
28. Passport Union;
29. Pharmaceuticals Industries (Medicines);
30. Pharmaceutical Ingredients;
31. Port Operations and here;
32. Third Country Status;
33. Timber and related products;
34. Trade cooperation;

and also …

35. European Parliament Impact Studies.

Any suggestions for further entries would be appreciated.

Richard North 08/12/2017 link

Brexit: media noise

Thursday 7 December 2017  

This is just the sort of fracas the legacy media love: an environment stiff with personalities, replete with conflict and intrigue, dirty-dealing, bad faith, claim and counter-claim.

It is also the point when sensible analysts pack their bags and go home, waiting for the noise level to subside. There is little of value which can be discerned when a media frenzy takes hold and so many different voices are cluttering the terrain.

The central point – widely ignored by all – is that Mrs May's cover story (based on the adoption of "regulatory alignment") has been well and truly blown. Thus, by any rational measure, she has nowhere to go with the talks in Brussels as she will not be able to offer anything which meets the EU's requirements.

However, one senses that the "colleagues" are anxious to have the talks run on into phase two, primarily because a failure of the negotiations right now would fatally weaken the UK prime minister to the point where she could be deposed. And the current sentiment in Brussels is, "better the devil you know". Bad as she is, her replacement could be inestimably worse.

For the rest, yesterday was the day when the entire world woke to the conclusion that has been troubling us for many months – that them up there simply don't know what they're doing. Any illusion of competence, either from May or David Davis, has been well and truly shattered.

Bluntly, though, I don't know why anyone should be at all surprised. That Davis's boast of having prepared zillions of impact analyses turned out to be so much hot air is entirely in character. We observed back in September that there was something of the Walter Mitty in the man, and that his word was not to be relied upon. The only good thing we can say about him is that he is consistent.

As for Mrs May, her truculent performance at PMQs more than adequately illustrated her lack of grasp of the issues, as she was tasked about how she would bring about a solution to the Irish question.

"That is the whole point of the second phase of the negotiations", she said, "because we aim to deliver this as part of our overall trade deal between the United Kingdom and the European Union, and we can only talk about that when we get into phase two".

The point, of course – as the "colleagues" have been at pains to point out - is that solution to the Irish border must be unique, and cannot be rolled into the general trade agreement. It is Mrs May's failure to understand this (together with almost every Conservative still capable of breathing – hard enough though that might be for some) that has been partially responsible for the mess she is in.

That notwithstanding, Michel Barnier has been told that the UK government is working on another text which they hope to submit to Brussels, in lieu of the last one. Barnier, for his part, has given Mrs May until Friday to craft a plausible fudge, failing which there will be no December approval to move to phase two.

As a sign that the "colleagues" are really rooting for the stricken May, though, we hear Leo Varadkar airily dismiss the looming deadline, remarking that, if the issue fails to make the cut and it isn't possible to move to phase two next week, "well then we can pick it up in the new year".

Although the first formal European Council of the new year is not until March, there is talk of an emergency session in either January or February, allowing Mrs May to cobble something together over the Christmas break, when hostilities are traditionally at their lowest ebb.

For all the talk of Brussels being "difficult", therefore, all the signs are that the key players on the EU scene are bending over backwards to help. Had they wished to pile on the pressure, they could have stuck to last Monday's deadline and then pencilled in March for the next review, leaving Mrs May to the tender embrace of her "Ultras" and the Corbynista – not that the latter should trouble her much.

For want of any stated explanation for this sudden outcrop of European solidarity, one can only surmise that, if the talks had dramatically failed this week, by the time March can along, there would be a different prime minister sitting in the UK slot in Brussels. Since this could range from such persons as the odious Rees-Mogg to Jeremy Corbyn (asked by the Queen to form a government), one can understand why the "colleagues" want to hedge their bets.

But that alone isn't going to solve any problems, and it isn't even going to buy time. Even a January review would only leave nine months for substantive talks – assuming that the EU still wants six months to ratify an agreement. However, given the EU's new-found "caring, sharing" demeanour, M. Barnier could perhaps be instructed to revert to the device of stopping the clock.

For all that, though, charity and the EU rarely go hand in hand without there being a price. Even if M. Barnier is being overtly considerate, that doesn't change the fundamentals. Particularly on Ireland, if there is to be an invisible land border, and the UK is not prepared to adopt the full rigour of the Single Market acquis and all that goes with it, then there will have to be a "wet" border.

Here, the expectation is of a border in the Irish Sea, with controls on goods passing between Northern Ireland and the rest of the UK. But, if that is not to be, then the Irish Republic will be in the frame. To prevent the land border being a "back door" into the Single Market, the other Member States will have to apply controls on goods exported from Ireland to the rest of the EU.

Since this hasn't been mentioned recently – out in the open, at any rate – one wonders if Varadkar is fully aware of what could be in store for him. Essentially, he will have to make the choice of dumping the UK and setting up a hard border to check goods coming over from Northern Ireland, or the EU will dump Ireland, setting up border controls on its exports.

Leo Varadkar, therefore, has more at stake in this game than any other player, and given that Ireland has for some time been seeking to reduce its economic reliance on the UK, the chances are that, forced to make a choice, he will "opt for Europe" rather than throw in his lot with a newly independent UK.

The bizarre thing about all this, though, is that barely anyone is seeing the situation with any clarity. We get, for instance, Bombardier saying that it would oppose any move that would effectively shift customs controls to the middle of the Irish Sea. It gives as its reason the fact that it does relatively little trade with the Republic and most of its imported components come from the UK.

However, given the need for it to gain EU approval for its design and manufacturing operations before it can export to EU Member States, it may find that closer ties with the EU are in fact more important than easy trading links with the UK.

It is here, of course, that Mr Davis's non-existent impact assessments would have come in useful, but it is also the case that either the parliamentary select committee system, the media, or even academia, could have worked out for themselves what various exit options entail.

After all, if a pensioner sitting in his daughter's former bedroom in a converted mill on the outskirts of unfashionable Bradford can work it out using a steam-powered personal computer, then I'm sure that these better-resourced outfits should have no problems.

But that brings us back to where we started. These outfits no longer exist to make sense of the world and report what they see (and understand). Primarily, they are noisemakers. And currently, they are in their element.

But when the noise abates, the issues will still be there. And so will we, listening for the signals that are currently being drowned out.

Richard North 07/12/2017 link

Brexit: creative ambiguity

Wednesday 6 December 2017  

No doubt European Commission officials who watched the "urgent questions " on Monday's abortive Brexit negotiations will have come away confused and perplexed. For, if Mr Davis's definition of "regulatory alignment" is one on which Her Majesty's Government now intends to rely, there is no basis of an EU-UK agreement on cross-border trade, much less any rapprochement on the Irish question.

For the purposes of settling a form of words that could form the basis of a commitment to the Irish Government on the border arrangements with Northern Ireland, the phrase "regulatory alignment" has considerable merit, particularly in terms of providing for the "creative ambiguity" that Mrs May sought in creating a text that meant all things to all people.

Here, this term seems at the last minute to have replaced the original Irish demand for "no regulatory divergence", a phrase with little inbuilt ambiguity which would require the regulatory regimes between Ireland and Northern to be kept fully harmonised. The use of the alternative "regulatory alignment" allows for the possibility of "parallel" regimes, without having specifically to state this as a necessary outcome.

The favourable response of both Jean-Claude Juncker and Donald Tusk to the Anglo-Irish agreement which contained this phrase evidently attests to their willingness to live with ambiguity, regarding it as "sufficient unto the day" to allow the Brexit negotiations to progress to phase two. The details could always be thrashed out at a later date.

A particular merit of this approach is that, in its most severe construction, "regulatory alignment" can mean rigorous harmonisation not only of rules and regulations, but also of the entire regulatory regime. That will necessarily include surveillance and enforcement and all the other trappings which would go with a system which seeks to emulate the structure and extent of the Single Market.

On the other hand, used in looser environments, the same term can mean merely an approximation of laws and systems, sufficiently close to allow for different regulatory authorities to rely on mutual recognition. It would not require systems to be irrevocably harmonised.

Precisely that ambiguity would allow a Conservative government to present to its own supporters and the public at large a vision of a relaxed trading system. Some divergence would be permitted and the UK would have the flexibility to approve its own laws. But, for the purposes of the Brexit negotiations, the Commission could be assured that only the strictest application of the term would be considered.

If that was the plan – and it is the only possible way the Commission could have approved it – then it yesterday sustained multiple holes below the waterline, after Mr Davis blew the ambiguity out of the water.

Nemesis came when the Secretary of State for Brexit responded to a question from Yvette Cooper, who asked for clarification of the Government's position. Was regulatory alignment "really important not just for the Good Friday agreement, but for businesses right across the United Kingdom?"

Davis, in turn, referred to Mrs May's Florence speech, asserting that the Prime Minister had "made a very plain case for the sorts of divergence that we would see after we left". She said, or so Davis would have us believe, "that there are areas in which we want to achieve the same outcomes, but by different regulatory methods".

In fact, Mrs May said no such thing – not explicitly, at any rate. In fact, during that speech, she said, "when it comes to trade in goods, we will do everything we can to avoid friction at the border", adding that, "of course the regulatory issues are crucial".

Noting that the EU and the UK shared "a commitment to high regulatory standards", she accepted that, "in any trading relationship, both sides have to agree on a set of rules which govern how each side behaves". Thus, she said, "we will need to discuss with our European partners new ways of managing our interdependence and our differences, in the context of our shared values".

That, really, was as far as it went, although Mrs May did acknowledge that "the decisions we both take will have consequences for the UK's access to European markets and vice versa", an important if somewhat obvious observation.

Thus, when speaking yesterday, Davis was starting to break new ground when, continuing his answer to Yvette Cooper, he said: "We want to maintain safety, food standards, animal welfare and employment rights, but we do not have to do that by exactly the same mechanism as everybody else. That is what regulatory alignment means".

To Antoinette Sandbach, Davis reiterated "that alignment is not harmonisation. It is not having exactly the same rules; it is sometimes having mutually recognised rules, mutually recognised inspection and all that sort of thing. That is what we are aiming at".

Just to make himself perfectly clear, he then told Mark Pritchard that we could leave the single market and the customs union, yet have UK regulatory alignment, by "using things such as the mutual recognition and alignment of standards. That does not mean having the same standards; it means having ones that give similar results".

To Chris Leslie, the Labour member for Nottingham East, he declared that regulatory alignment was "not harmonisation, being in the single market, or having exactly the same rules". It was, he said, "this House exercising its democratic right to choose our own laws in such a way as to maximise our ability to sell abroad. That is how it will work".

Later on, Labour's Chuka Umunna intervened, reminding the Secretary of State that he did not think that keeping the UK overall in the customs union and the single market was the answer. So, asked Umunna, "what does he believe is?" The answer was: "a comprehensive free trade agreement, a customs agreement and all the associated regulatory alignment".

Stephen Hammond asked whether, for the continued success of legal, professional and financial services post Brexit, not only mutual recognition, but UK-wide regulatory alignment with the EU will be necessary, to have Davis declare: "If by alignment my hon. Friend means mechanisms such as mutual recognition, yes, I agree entirely".

Mike Gapes got short shrift when he asked Davis to "tell us the difference between regulatory convergence and regulatory alignment". "One is about harmonisation, one is not", said Davis, picking up the "slightly confused" Lucy Powell who asked whether regulatory alignment was "the only way to deliver the frictionless border". "The simple truth", said Davis, "is that we will need to establish arrangements whereby we get the same or similar outcomes for some areas of industry and service - no more, no less".

Then, having already told Antoinette Sandbach and others that regulatory alignment applies to the whole United Kingdom, Davis was confronted by Stephen Timms, who challenged him to confirm this.

Said Davis, "I have explained to the House that regulatory alignment is not harmonisation. It is a question of ensuring similar outcomes in areas where we want to have trade relationships and free and frictionless trade. Anything we agree for Northern Ireland in that respect, if we get our free trade area, will apply to the whole country".

So, the cat is out of the bag and there is no going back. Essentially, the UK is aiming for what it has always aimed, more or less from the start of the May administration. It wants "a comprehensive free trade agreement, a customs agreement and all the associated regulatory alignment", the latter meaning either mutual recognition or what amounts to regulatory equivalence.

Furthermore, in his haste to pacify the DUP, Davis has confirmed that Northern Ireland will not be treated as a special case – yet despite this still expects a "frictionless border".

Currently (at the time of writing), Mrs May is still waiting to speak to Arlene Foster and her Wednesday visit to Brussels has been cancelled. As far as the rest of the week goes, Mr Juncker has told her that she has the Thursday but that's it.

But, even if by then – or whenever the next meeting takes place – Mrs May has managed to square off the DUP, her Secretary of State has destroyed the Brussels pitch. As now defined, there is no possible way that the "colleagues" can accept regulatory alignment as a satisfactory basis for allowing UK goods free access to Ireland.

Such is the apparent concern of Brussels that the talks should continue, one takes the view that the EU collectively has decided that it is too early for them to fail. We can, therefore, expect another fudge, although the options for "creative ambiguity" are rapidly running out.

What we must not lose sight of though is that this current shambles has demonstrated that the UK government's strategic thinking on Brexit has not advanced one iota. It is still wanting to have its cake and eat it, and still hasn't come to terms with the consequences of leaving the Single Market.

And all of this goes back to the Lancaster House speech, my response to which was expressed in uncharacteristically blunt language. And if that's what we were then, that's what we are now. Nothing has changed.

Richard North 06/12/2017 link

Brexit: no deal means no deal

Tuesday 5 December 2017  

Sticking strictly to the facts, all we know of the current situation is that Mrs May went to Brussels in the expectation of making a deal with Jean-Claude Juncker. That in turn would pave the way for the European Council to approve a mandate for Michel Barnier to move to phase two of the negotiations.

From that, the only thing we know for sure is that Mrs May didn't get her deal. After the meeting, both parties held a joint press conference during which they said very little. There were no questions and Mrs May left for a meeting with Donald Tusk to ask for extra time.

As to the reasons why there was no deal concluded, most of what we're getting is speculation, based largely on leaks to the media.

Their current narrative is that the UK government had been on the brink of an agreement in which it would accept "continued regulatory alignment" between the Irish Republic and Northern Ireland – apparently based on a deal brokered between Whitehall and Dublin.

As the narrative has developed, it is asserted that the DUP intervened publicly, rejecting the Whitehall/Dublin deal. This led Mrs May to break off her meeting with Juncker to take a 'phone call from Arlene Foster, the outcome of which, it is said, was that attempts to conclude the deal with Brussels on the day were abandoned.

Foster's pitch, based on "speculation emerging from negotiations", was that Northern Ireland must leave the EU on the same terms as the rest of the UK. The DUP would not accept any form of regulatory divergence which separated Northern Ireland economically or politically from the rest of the UK. The economic and constitutional integrity of the United Kingdom would not be compromised in any way.

Crucially, we are told, Foster came away from her telephone discussion with Mrs May saying that the government understood the DUP's position. The prime minister had made it clear that there would be no border in the Irish sea and that the "territorial and economic integrity of the United Kingdom will be protected".

A popular media narrative thus rests on the scenario that "Theresa May's desperate bid to break the Brexit deadlock and move on to trade talks was dramatically torpedoed in an eleventh-hour phone call with the DUP".

That said, there are some crucial, unresolved inconsistencies in this narrative to the extent that it hardly seems to hang together. First, and most important, it relies on the idea that Mrs May went to Brussels with a proposal that she must have known that the DUP would not accept – and then had to be dragged out of her meeting with Juncker to be told this.

Now, over months that Mrs May has been prime minister, we have largely come to terms with her incompetence. But it is nonetheless difficult to believe that, with the well-known and frequently rehearsed position of the DUP, she could go to Brussels with a proposal she must have known would by rejected by this Northern Ireland party. This is carrying incompetence to a new level.

Secondly, while much has been said of the Whitehall/Dublin deal, as far as I am aware, the full official text has not been made public. All we have to go on is an "early negotiating text" leaked to RTÉ News and "sight of a key phrase in the joint text".

This "key phrase" said that "in the absence of agreed solutions, the UK would ensure no divergence from those rules of the internal market and the customs union which supported North/South cooperation and the protection of the Good Friday Agreement".

And while there is also talk of "regulatory alignment", there are no indications as to whether that encompasses the full extent of the deal, or whether there was more to it – especially in the small print.

Further, we do not know whether this deal, apparently agreed between the UK and the Irish Republic, was necessarily agreeable to Brussels. And nor do we know that Mrs May based her proposal on the exact deal that was agreed, or whether she changed some of the text, or even played around with the framing.

What we do know though is that the prime minister made it clear to Arlene Foster that "there would be no border in the Irish Sea and that the territorial and economic integrity of the United Kingdom will be protected".

This begets another major inconsistency. As it stands, there is no possible way that Brussels could accept a situation where there was a soft border between the Republic and Northern Ireland, with no controls over goods from the mainland UK. This would open a back door into the Single Market which would be completely unacceptable to the remaining EU Member States.

This again is an issue of which Mrs May can hardly be unaware, which leaves one dubious at the prospect of her proposing something to Brussels that cannot ever have been acceptable.

This, then, leaves us with two implausible options. On the one hand, Mrs May went to Brussels with a proposal she knew the DUP could not accept, or she went with a proposal that the EU could not accept. And, from what we know, it could just as easily have been the case that she went with the second proposal – her telephone conversation with Arlene Foster simply confirming something that was already in hand.

There is little doubt, however, that Mrs May did go to Brussels expecting a deal. She had booked time in Parliament today, asking the Speaker to clear "several hours" for a "major statement" on the outcome of her talks. This has now been cancelled.

Going for the other option, we have a statement from Leo Varadkar. Speaking yesterday, he claimed that the United Kingdom had agreed a text on the border that had met Irish concerns. He was, therefore, "surprised and disappointed that the British government now appears not to be in a position to conclude what was agreed earlier today".

This might be given credence by suggestions that Mrs May was relying on "creative ambiguity" in the Irish text, thinking that it would get the UK past this milestone and give her wriggle room when it came to filling the detail.

In this, May possibly banked on the full text not being published, except that most of the content was leaked by Belgian Green MEP Philippe Lamberts. He, with other MEPs had been meeting Juncker in the morning, emerging to tell journalists that the "Brits" had accepted "reality". This is said to have provoked Arlene Foster into action.

Either way, however, Mrs May's negotiation was doomed to fail – as it always was. This is the epitome on the rock and the hard place, where the only real option – the "wet" border was never going to be politically acceptable to the DUP. If Mrs May didn't realise this, and thought she could get away with a fudge, then we have a very worrying situation.

One wonders, therefore, Mrs May was going through the charade of trying to make an unmakable deal, simply so that she could say that she had tried. But even that does not square with the indications that she believed she would conclude a deal.

And despite everything, that is still on the table. Mrs May is to return to Brussels on Wednesday for another round of talks, with Donald Tusk saying that there is "still time" before the 15 December, when the European Council must meet to determine the fate of the negotiations.

Whether the prime minister can pull it off remains to be seen. I suspect it will depend on whether Brussels prefers its fudge toasted or fried. For the moment, though, no deal means no deal – the only thing clear about this episode.

For the rest, we're getting confirmation of that old saw about Irish politics: if you think you understand them, you haven't been listening.

Richard North 05/12/2017 link

Brexit: everybody gets a prize

Monday 4 December 2017  

000a Times-004 deal.jpg

On the day that Mrs May meets Jean-Claude Juncker to present him with the "final offer" which it is hoped will take us through to phase two, the Financial Times is claiming that the UK is on the brink of a deal.

With the scent of fudge in the air, the paper could be right – but then it could be hopelessly wrong. If it is, it'll quietly forget this story but otherwise we'll never hear the last of it.

As one might expect, the evidence is pretty thin, apparently based on an exchange with another of that increasingly common breed, the anonymous official. Just for a change though, this one is Irish. What's more, he (or even she) is a senior Irish official. This must mean that what he (or she) has to say must be truer than if it came from a mere official – or, heaven forefend, a junior official.

Supporting the FT narrative (not), he (or she) says that they (the Irish government) were "still awaiting signs of a definitive breakthrough". That, of course, leaves the agreement "hanging in the balance", which prompts the official to say: "As we speak at the moment, this is a very fluid situation. There are intensive contacts back and forth".

In terms of substance, that is all you get – which means that the story is not inconsistent with the Telegraph headline, which has: "Brexit timetable in jeopardy as Theresa May fails to reach deal on Irish border ahead of EU deadline".

To an extent, this is a matter of half-empty, half full, with the Tory comic reporting: "Theresa May will go into a crunch meeting with EU leaders on Monday admitting she is yet to find a solution to the Irish border problem". But to put it on the half-empty side, this paper adds that a Cabinet minister has suggested for the first time "that Brexit might not happen".

However, the paper also thinks that no agreement is in sight – thereby completely contradicting the FT - thus suggesting that "the Prime Minister is now likely to ask for a last-minute extension to the Monday deadline".

Not content with a mere "senior official", the Telegraph relies on "Whitehall sources". These, of course, are just as anonymous, but also well enough known for the paper to state that they have "bitterly complained" that Leo Varadkar had "moved the goalposts" by insisting on guarantees over the future border arrangements now, having earlier said the issue could be thrashed out once trade talks were underway.

One presumes here that the UK negotiators are relying on Varadkar's speech to the Dáil earlier last month when he said that it was "not going to be possible" definitively to settle the question of the border with Northern Ireland until the shape of the future EU-UK relationship emerges.

At that point, the Irish Prime Minister was of the view that it was "likely that we will be able to say that sufficient progress has been made at the December meeting". This, he thought, would allow the EU to move on to discussions on transition and the future arrangements.

However, that depended on what happened over the next number of weeks, and the "specific assurance and guarantees we can get in writing from the United Kingdom". He sensed that things were "moving in the right direction" and he was more optimistic than he had been in October. With that, though, came the caveat, that his mood "may change".

Nevertheless, Varadkar did address the lack of clarity in the Brexit debate, saying the way it was intended to deal with this "is not that everything in phase one has to be agreed before we move on to phase two".

It was, he added, "that sufficient progress has to be made on phase one: on the financial settlement, on citizens’ rights on issues specific to Ireland and that allows us to move on to phase two where we can talk about the transition arrangement and the new relationship".

Varadkar then concluded: "It is not going to be possible to fully resolve the border question until we start to talk about the future relationship that the UK will have with the European Union". There will come a point, he said, "when it is in our interests to actually start talking about that".

Clearly – or not so clearly – that point has not been reached and the Irish are still after written guarantees that they feel they haven't yet got. Varadkar will hold a special meeting of his cabinet today discuss Brexit, and we may get further statements before Mrs May struts her stuff.

Here, in a less than helpful manner, May has the support of her Brexit secretary, who is still insisting that it is "imperative" that the Irish border is "discussed in tandem with Britain's future trading relationship with the EU.

But, according to the Sunday Times, Varadkar agrees that a parallel process could help to ease the resolution of outstanding issues in relation to the Irish border.

He says: "I think the suggestion that David Davis has made, to a certain extent, is common sense. If we were able to have a trade agreement between the EU and UK then, of course, it will be much easier to sort out issues around the border between Ireland and Northern Ireland". But he then adds that he has not seen any evidence from the Brexit papers released to date that Britain had a solution to the trade and customs arrangements that would be necessary after March 2019.

That, if the Guardian is to be believed, puts Mrs May taking "personal charge" of the Brexit negotiations.

For all the to-ing and fro-ing, hopes remain that her meeting with Juncker will clinch the deal. And, although I have been writing of "dinner", it seems that Mrs May is actually having lunch with Jean-Claude Juncker before later meeting Donald Tusk.

Work on the final text of an agreement is being worked on by officials in Dublin and the Guardian sits on the fence, saying that the chances of it being ready in time for the May-Juncker lunch has been put at 50:50.

An added complication for Mrs May is a tedious letter signed by former cabinet ministers Iain Duncan Smith, Owen Paterson, Nigel Lawson and John Redwood, plus 30 others.

They are asking Mrs May to make any payments to the EU conditional on reciprocal free trade "without tariffs" between the UK and the EU, which must be agreed in principle by 30 March next year. They also want the UK to have freedom to conclude trade deals "across the globe" from 30 March 2019, and insist that the ECJ shall cease to have any jurisdiction over the UK from the date we leave the EU.

They also want freedom of movement to end, that any "necessary implementation period" should not exceed two years, and that no new EU regulations should apply to the UK from 30 March 2019. And as regards the Irish question, all they want is for the parties to "work diligently and act in good faith" to secure an agreement before we leave.

On the regulation point alone, these "Ultras" are seeking to build in divergence to the Article 50 agreement. While the comprehensive trade deals the EU has done require that the parties work towards regulatory convergence (while the Swiss and EEA deals require continued adoption of relevant EU measures), we are supposed to be asking for a deal that does the opposite. This, undoubtedly, will close down access to EU markets and make a comprehensive trade deal very hard to agree.

Front runner in opposing continued ECJ involvement is Owen Paterson, alongside Iain Duncan Smith. They regard a "foreign" court having jurisdiction over the UK as being intolerable to an independent United Kingdom. Paterson, it appears, is content for us to be subordinate to the European Court of Human Rights, the WTO dispute bodies and the International Court at The Hague.

All this, apparently, is perfectly acceptable. But to accept the ECJ "would be to condemn ourselves to the status of a vassal state, relinquishing power over our laws – and by extension over our people – to a court on which we are not represented". The citizens of a newly sovereign nation, says Paterson, "deserve better than that".

However, all is well with the world. This morning's edition of The Times has sided with the FT. Its senior officials are saying: "Brexit deal 90% there". It would be churlish to dwell on the ten percent. How could anything possibly go wrong?

Richard North 04/12/2017 link

Brexit: the most fateful mistake

Sunday 3 December 2017  

One of the most tedious aspects of the Brexit debate – which is already more far more tedious than it should be – is the inability of the pundits to grasp the most basic of the issues and thus explore the "real" situation rather than that which is imagined to be.

By contrast, the real issues – their technicalities and complexities – are fascinating and their diligent study brings its own rewards. The tedium comes with having to deal with people who have never sought to understand the issues and are thus driven to propose (or support) one improbable scenario after another, only then to find that their nostrums fail to deliver anything remotely approaching workable solutions.

When it comes to the Irish question, however, a useful insight comes with Booker's latest column, illustrating that we've been failing to grasp the issues presented by this troubled island for well over a century (no paywall).

Decades ago, when he was reading Irish history at Cambridge, he writes, nothing struck him more than the passage in Winston Churchill's The World Crisis where the great man recalled how the final Cabinet meeting before the outbreak of the Great War was spent "toiling over the muddy fields of Fermanagh and Tyrone", as they deliberated on where the border should lie between Northern Ireland and the proposed new Irish Free State.

Four years later, Booker observes, what should re-emerge as top of the agenda for the first Cabinet meeting after the Armistice but those "dreary steeples of Fermanagh and Tyrone". Who could have foreseen that a century later that same Irish border might be the crucial breaking point in Britain's bid to leave the European Union?

Bringing us up to date, tomorrow Mrs May dines with Jean-Claude Juncker, supposedly to deliver the final UK position on the three points on which we will be assessed by the European Council to determine whether negotiations can move on to phase two.

Already, Mrs May has made the predictable concessions on the financial settlement and, while there has been some progress on the expat issue (which is still stalled on the role of the ECJ), on the Irish border we seem to be heading for a completely intractable shambles.

Writes Booker, the EU correctly explains that, by choosing to leave not just the Single Market but also the wider European Economic Area (EEA), the UK becomes a "third country". It is then automatic under the rules that we will face the "hard border". And this, as I have pointed out, is not something the EU does to us.

Becoming a "third country" is a status that we as a nation assume as a result of our moving out of the regulatory union that is the Single Market. By so doing, we become the same as any other country outside the union, with all the physical infrastructure, inspections and delays that this implies - only more so. 

Most other countries have spend decades forging trading links and concluding a vast network of informal and formal trade agreements. We will be tearing ours it. For the UK, it is year zero.

As the the inevitable presence of a hard border, this much the House of Commons Brexit Committee seemed at last to recognise in its report published on Friday. But, contrary to any sense or experience, Downing Street remains adamant that there can be no "hard border". This has become an unvarying mantra that has long since lost touch with the real world.

Yet, if Theresa May had understood the rules of the system that we have been part of for 44 years, Booker writes, she would know that we will be compelled to apply our own border controls in Northern Ireland, just as we do now on all goods from third countries as members of the EU.

Without such controls, we would otherwise fall foul of precisely those "WTO rules" our "hard Brexiteers"- the "Ultras" as we call them - are so fond of. These are the rules which prohibit discrimination in trading arrangements that favour one country over others.

If we were to exempt goods entering Northern Ireland from border controls, every other country in the world could claim the same rights. So now there is talk of leaving Northern Ireland in the EU customs union and the Single Market, to move the inevitable hard border into the middle of the Irish Sea.

At that point, step forward those Democratic Unionist MPs, on whose votes Theresa May's fate depends, to say that although they also cannot accept a hard border with the south, this compromise is even more unacceptable. It would be the first step towards a united Ireland.

Once again, Booker thus observes, those "muddy fields" and "dreary steeples" re-emerge at the centre of UK politics. Yet the tragic fact is that this crisis was wholly avoidable.

Like so many other problems we have brought on ourselves in the shambles we are making of Brexit, this one would never have arisen if only Mrs May had not made that reckless decision last January to leave the wider EEA, allowing us to leave the EU but without any "hard borders".

But, instead of looking forward to a measured transition from full membership of the EU to a stable trading partnership, we are haunted by May's idiosyncratic – even dictatorial – approach to governance, relying wholly on advice from Nick Timothy. We enter this new and critical phase in our history slave to a decision made by people who hadn't the first idea of its consequences.

In normal circumstances, the sustaining myth of any nation is that the people running the government actually know what they are doing. But, as government faces its most complex task since the war, we find decisions being taken not on the basis of knowledge but fuelled by the ignorance (and obstinacy) of a tiny number of people.

In this context, readers will recall that, in the recent Irish report of UK's handling of the negotiations, we had an observation from Ian Forrester - the British judge in the ECJ.

He criticised "the quality of politicians in Westminster" and said there had been "a fair amount of contact" between him and the British government on the issue. Of all those he had met, "only one person … had any real grasp of the complexities involved [in leaving the EU]".

It takes little imagination to work out who that person might have been. When I put it to Sir Ivan Rogers that he was the "mystery man", he did not disagree. He has now left government service.

Sir Ivan himself has his own views on the capability of the civil service and, in his view, the personnel and the structures have deteriorated over the period of his career. They are not, he believes, up to the task confronting the nation, any more than are the politicians.

This damages beyond repair the idea that we can rely on the people "in charge". Contrary to general expectations, the higher up the tree we go, it seems that –the less knowledgeable people are – and the more serious their errors.

And here, Booker and I are as one: that Mrs May's ill-considered decision to take the UK out of the Single Market will be looked back on as the most fateful single error in the entire dismal story of Brexit. Of all the possibilities for an ordered Brexit. there was never any rational choice other than the Efta/EEA option.

This is not just another free trade agreement, a top-level graduation of the other comprehensive deals so far concluded by the EU. The EEA, uniquely, embodies the complex mix of governing and administrative institutions and the dispute mechanisms.

These are fully integrated with the surveillance and enforcement systems, which then rely on high level consultation and communication – with the whole package bound by a common legal framework which is routinely and reliably updated to keep it in phase with the EU's Single Market acquis.

Consistently, though, we hear the prattle of ignorant minds, arguing that regulatory conformity is sufficient to ensure market access, when this is but an element of the whole. It is the complexity and sophistication of the EEA Agreement, taken as an indivisible whole – rather than any one part - which enables the near-frictionless trade which its members enjoy.

The long and the short of this is that we confront an all-or-nothing situation. We either adopt the whole package – giving us something we can build on and develop - or we are on the outside. There are no half measures. If we choose an alternative - whether a Ukraine-style deal, a CETA analogue or something similar to the agreement with the Republic of Korea - the outcome will be the same. We will be on the outside. It is just a matter of degree.

What almost everybody seems to have lost sight of is that we are currently members of the most comprehensive and sophisticated treaty organisation in the world, which in turn is host to the most heavily integrated trading system in the world. That makes the Single Market unique. There are no parallels. Thus, to withdraw is inevitably going to be traumatic. Things are not going to be the same. There was never any prospect that they could be.

Yet, time after time, we are hearing politicians and others who voice expectations of normality. To them, it is almost as if leaving the EU was of the same magnitude as changing the shop from which one gets one's papers delivered.

And, if seventeen months after the referendum – following a lacklustre campaign where the important issues were barely discussed – we still cannot get the basics right, then there seems little hope that things can improve. Like a pernicious weed which, if left neglected, will take over a garden, ignorance has taken over the debate – from the highest to the lowest level.

Remarking on this phenomenon, Pat Byrne, the founder of the Irish airline CityJet, declared: "It almost seems that the Brexit car crash must be allowed to happen before the people of the UK see the folly of it". This, could, however, he more of a case of fools rushing in.

Richard North 03/12/2017 link

Brexit: they simply do not understand

Saturday 2 December 2017  

000a Understand-002 Brexit.jpg

Charles Moore is in full flow this weekend, writing up in his column that: "Theresa May's fearful Brexit is leading us towards a Declaration of Dependence" (no paywall).

Fisking Moore just for the sake of it, although entertaining enough, is a complete waste of time. But since he seems to have appointed himself spokesman for the "Ultras", his columns increasingly give us some insight into what might loosely be called the "thinking processes" of the Tory claque which is devoting itself to bringing about a "hard Brexit".

From his current column, we can see that Moore's great lament is that having, effectively, committed £50 billion in payments to the EU, we are not getting anything substantial in return.

Certainly, he says, we have gained "no concession about future trade" and "no sympathy for the 'imaginative' trade approach we have called for". The process set by Michel Barnier and meekly accepted by our negotiators, Moore complains, "has always been deliberately unimaginative".

All we are getting is an acknowledgement (leaving aside Ireland and the expats) that paying the money brings us "sufficient progress" in the talks to allow us to start discussing trade. It does not buy us acceptance of any British views on the subject.

The EU, he says, "will insist on Britain retaining the 'European model' of regulation if it wants a trade deal". All we jettison is rights – a judge at the ECJ, a place among the Council of Ministers, representation in the European Parliament. What we keep is the rules and obligations.

From this we can infer (and we have to infer, because he does not make the case openly) is that Moore thinks we should be entering a grand bargain: our money in return for special favours in the manner of bartering for a Turkish carpet in a souk. The more money we pay, the better the carpet we should be getting.

However, whether you agree with the detail of the EU's stance or not, it is pretty plain that the "colleagues" see the money question as meeting past commitments. It is not a "divorce bill" as the media so often paints it – it is simply paying outstanding bills. In the nature of things, that does not confer any rights or create any privileges. That Moor should want "favours for cash" illustrates how little depth to his work, on which basis one can scarcely credit how superficial his (and by inference the Ultras') case really is. But only if we are prepared to wade through his polemics can we really understand what he's after.

In this column, we're nearly at the end before we see the case summed up – and then only in two short sentences. In the first, he says, "The purpose of our EU membership was to converge" and in the second, he declares: "We decided to diverge".

You have to give it to the man – this is a beguilingly simply analysis. But then, as we have so often observed, the "Ultras" don't do detail. What they prefer – as illustrated by Moore – is mantras. The whole of our experience of the last 44 years of EU membership is collected together in one word: "convergence". And since we are now leaving the EU, our single purpose – our sole objective – is "divergence".

Therein we can find the entire thrust of the Ultra objections to any process of managed withdrawal, and all that goes with such a process. We are leaving in order to be different so, when we leave, we should be devoting ourselves to being different. And now, Moore wails, "we are not being allowed to. Our Government is ruled by fear, and clings to its jailer even though the prison doors are open at last". He then writes:
How different Mrs May's narrative could be. National independence is a language of possibility. She could seize on this week's dramatic drop in the net migration figures from the EU to suggest the benefits of controlling our own borders. She could state that our offer of so much money is strictly tied to a reciprocal no-tariff trade deal. She could announce that, with time so short, we shall prepare fully for the possibility (actually the likelihood) that the EU will not agree to any special, bespoke agreement for Britain, and therefore get ready to trade on WTO terms. Instead she is almost making a Declaration of Dependence.
At the heart of this little squib is the reliance on the WTO option and the evident belief that WTO terms would be anything but a disaster. Last week, we had the Telegraph's Liam Halligan trying to make the case, recruiting WTO boss Roberto Azevedo to say that it was "not the end of the world".

This week, though, freed from the Halligan spin, he adds: "But it's not going to be a walk in the park. It's not like nothing happened, there will be an impact. It will be a very bumpy road, and maybe long as well". Further knocking Halligan into the dust, he then says: "Now, the question is how bumpy and how long - and that depends a lot on the terms of the agreement that will be reached between the UK and the EU, I have no way of knowing at this point in time".

Confronting this "long" and "very bumpy road", anyone sensible slows down and takes extra care to avoid the potholes, thus sparing the suspension. But the "Ultras" want to ramp up the speed to a reckless level, convincing themselves that no harm will come from their action.

And then there is the Irish border question, something that Moore avoids, on the grounds that " nobody seems clear what on earth is happening". Yet Moore's column comes after the publication of the Brexit Committee report (which had four Tory abstentions). This had MPs telling us that:
We do not currently see how it will be possible to reconcile there being no border with the Government’s policy of leaving the Single Market and the Customs Union, which will inevitably make the border between Northern Ireland and the Republic of Ireland the EU's customs border with the UK.
And while Moore bleats about money in return for a trade deal of our choice, European Council President Donald Tusk has met Taoiseach Leo Varadkar, telling him that the EU is fully behind him and the Irish people and their "request that there should be no hard border on the island of Ireland after Brexit". Says tusk, "The Irish request is the EU's request". He adds:
It is the UK that started Brexit and now it is their responsibility to propose a credible commitment to do what is necessary to avoid a hard border. It is clear that we cannot reach a full agreement on every single detail at this stage, especially that the final outcome will be linked to the future relations between the EU as a whole and the UK.

As you know, I asked Prime Minister May to put a final offer on the table by 4th of December so that we can assess whether sufficient progress can be made at the upcoming European Council. And we have agreed today that before proposing guidelines on transition and future relations to the leaders, I will consult the Taoiseach if the UK's offer is sufficient for the Irish government. Let me say very clearly: if the UK's offer is unacceptable for Ireland, it will also be unacceptable for the EU. I realise that for some British politicians this may be hard to understand. But such is the logic behind the fact that Ireland is an EU member while the UK is leaving. This is why the key to the UK's future lies - in some ways - in Dublin, at least as long as Brexit negotiations continue.
Clearly, this is not only hard for some British politicians to understand. The "Ultras", as represented by Charles Moore, are having difficulty understanding this as well. As I have remarked elsewhere, they seem to lack the intellectual architecture to make sense of what they see and hear. They are beyond our reach.

Richard North 02/12/2017 link

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