Brexit: letting off steam

Thursday 30 June 2016  

What does not come over from the media reports, but is extremely evident from President Tusk's statement, is that the meeting in Brussels yesterday of Heads of States and Governments (HSGs) was an informal gathering which had no official status whatsoever.

The gathering, from which the UK was excluded, was not meeting as the European Council (even though it was using – or abusing – Council facilities) and had thus no authority to make decisions or policy on behalf of the European Union. Effectively, this was an exercise in letting off steam.

On the receiving end of the messages, we assume that the "colleagues", individually and collectively, are talking to us. This isn't always the case, and sometimes it isn't the case at all. For the most part, these are politicians speaking to their own domestic audiences - especially Merkel and Hollande, who are facing re-election next year.

What this means, though, is that the much-touted "decision" that the UK "will not be given access to Europe's single market without accepting freedom of movement rules", has no legal force – and probably no practical effect.

Even the choice of terminology is a bit odd, with President Tusk, speaking in English, saying that: "Leaders made it crystal clear that access to the Single Market requires acceptance of all four freedoms, including the freedom of movement. There will be no single market à la carte".

One is never really sure in these circumstances what is meant by "access" to the Single Market. Properly defined, the Single Market is a common regulatory area. A country is either part of it, or it is not. If it is not, then it can trade with the countries forming the Single Market, on defined terms. But for the most part those countries which have trading privileges are not required to accept the full freedoms.

The more one explores this subject, though, the more anomalies are thrown up. For instance, it is common to talk of the Single Market acquis is if it was a monolithic block, common to the entire area. Yet, that is not the case. There is unrestricted trade in agricultural products between the EU-28 but not within the EEA. The Efta states are not part of that market.

Thus, while all Single Market legislation supposedly has the description, "EEA Relevance" appended to it, this is not the case with laws governing agricultural products. We can see that from this example. Norway, Iceland and Liechtenstein do not apply these standards (through the EU).

The point that emerges from this is that the Single Market is actually quite flexible - more so than would appear. It can be modified according to circumstances, and different versions of it exist, in different areas. There is no reason in principle, therefore, why the UK should not negotiate its own specific version of the supposedly Single (but actually "variable") Market.

And that very much appears to be the case with freedom of movement. It actually matters not what the HSGs say in an informal meeting because – as we saw with Leichtenstein - the provision for exemption is built into the EEA agreement.

The important thing here is that invoking Article 112 is not bending or twisting the law. Nor is the Article a "loophole" – it is a fundamental part of the Agreement. Thus, to use it to cap immigration is to use it precisely for one of the purposes for which it was intended. And, given that – for Efta states – its application is unilateral, there is no mechanism for over-riding it.

It could of course, come to pass in the Article 50 negotiations, that the remaining EU members refuse to allow the UK to stay in the EEA, or seek to modify the Agreement.

Either would be problematical, and would create as many problems for the EU as it would the UK. Administratively, the EU simply does not want another unique arrangement with a neighbour, absorbing disproportionate amounts of resource.

This has actually been the problem with the Swiss agreements. From the EU's point of view, they are resource-intensive. It would prefer to fold Switzerland into a standard "neighbourhood agreement", common to all its near-neighbours.

Switzerland also has another edge to it, with the outcome of the 2014 referendum on immigration quotas, which is very far from resolved. The EU could find itself fighting quota battles on two fronts, from a weaker position than currently appears.

Nevertheless, as always, our own people are proving to be the greater part of the problem. Fresh out of the "stupid bin" is our old friend Farage who is blithely disowning the Norway option. "We didn't vote for that", he says. "We did not vote to be part of this outdated cartel that is called the single market. We voted to be free of it, to stop regulating the 88 percent of the economy that does not export goods to the European Union".

Having given no serious thought to a post-exit settlement, it is not helpful to have the likes of Farage sounding off, especially as he is speaking against the one option that has any great utility as part of an interim settlement.

He is by no means the only one, but gradually, Flexcit is getting an airing. We're now recording well over 90,000 downloads and will be reaching 100K shortly. The determination in some quarters to ignore the only plan in town is now looking not just small-minded but downright silly. 

For all that, I'm glad I called it Flexcit, with the "Fl" standing for flexibility. We are having to adjust to the changing circumstances, but at least we can. It's the EU which is having the problems adjusting. We're ahead of the game.

Richard North 30/06/2016 link

Brexit: a matter of timing

Wednesday 29 June 2016  

Aside from the diminishing minority who are insisting that there's a way round it, we're at least reaching a stage where it's accepted that, in order to leave the EU, we will have to invoke Article 50. Much time has been wasted on this issue, but it's tine to move on.

Given that the clock starts ticking the moment the notice is sent to Brussels, though, there is a natural and sensible reluctance to invoke the Article too soon. Although, pre-referendum, Mr Cameron threatened the nuclear option, with an immediate use, wiser heads have prevailed, and he's leaving it to his successor, who will not be in place until 2 September.

However, as we see from the European Council meeting – held without the UK being represented (which probably makes it a 27-nation "summit") – leaving the notification much longer is probably not tenable.

In fact, it may not even be possible to hold off before that, as domestic as well as political pressures mount. Mr Cameron may be forced to revisit his decision, and invoke the Article earlier.

On the face of it, this could be fraught with danger. For us to run out of time and leave the EU without a settlement in place would be catastrophic. The outcome has been so well rehearsed that there should be no need for any further discussion on this. Leaving without a settlement is simply not an option.

The problem here is that the "colleagues" will be very well aware of this and, as the two-year period runs into the sand, will be able to use this as leverage, to extract negotiating concessions. Technically, this is known as "blackmail".

For this reason, we have long argued in Flexcit and elsewhere that we should conclude the negotiations within the two-year period, with that constraint shaping the entire UK approach to the exit settlement.

However, there may – and I do stress "may" - be a way out of this. It rests on the observation that, while one might expect to apply for extra time when the deadline is looming, there is nothing in the book that says this needs to be the case.

Instead, there is nothing to stop an application for extra time being the very first item in the order of business. We could, for instance, apply for a three-year extension, making five years in all – thus taking the time-limit off the agenda. We could even make the total ten years.

The crucial issues here is that the "colleagues" themselves are agitating for a speedy Article 50 negotiation. The uncertainty is as damaging to them as it is the UK – if not more so. Thus, a very brief window, we actually have some leverage.

What we do in these circumstances is make an early notification conditional on the Heads of States and Governments (HSGs), within the framework of the European Council agreeing to extend the Article 50 negotiating period.

This would then allow the preliminary discussions to be undertaken, without putting us in jeopardy, while also lifting some of the domestic pressure. And, while a period of five years is agreed, that does not necessarily mean that the full time should be used.

In this context, there is nothing in the rules either to suggest that there can't be a phased exit settlement, rather than a "big bang". It might be possible to lift or waive some of the provision of the treaties, in measured steps, rather than releasing them all in one go.

One thought in this respect is that the UK should explore the legalities of becoming a member of the EU and Efta simultaneously, as part of a transition process, with the EEA acquis being managed as if the UK is an Efta member.

And while that may not be possible – the idea of a staged withdrawal from the EU is not impossible. Something along these lines was being considered with the Spinelli-Bertelsmann "fundamental law" proposal, where the UK became an associate member, adopting only part of the overall acquis (as is already the case).

Certainly, the whole idea of a measured, phased withdrawal might do much to calm the jittery nerves of the markets, and also reassure everybody else that nothing sudden is going to happen. Dealing with change at a pace that everybody can cope with seems to make much more sense.

Given that there is political will, much can be achieved, without the Sword of Damocles, in the form of the two-year time limit, hanging over us.

Richard North 29/06/2016 link

EU Referendum: winning the peace

Wednesday 29 June 2016  

When I was researching for my book, The Many, Not The Few, on the Battle for Britain, I was staggered to read in Cabinet papers in 1940, when Britain's peril was at its height, discussions about the post-war reconstruction of Europe.

That was the sort of forward thinking that the "eurosceptic" movement should have been doing but, apart from Flexcit and the heroic efforts of EUReferendum readers, there is is precious little to fall back on. We've been fighting the "war" for so many decades, with so little expectation of winning, that we've not devoted anything like enough time to winning the "peace".

Now, we are probably in greater peril than we've ever been before. The "leave" factions are still split, and with much energy being soaked up in the Conservative Party leadership campaign, this means we are still not focused on the issue at hand.

The ex-remains (XRs), however, are by no means as distracted. Most of the ideas for the the post-exit settlement are coming from that quarter, mainly centred around the "Norway/EEA option" which is suddenly coming into fashion as the alternative to EU membership. Even Kenneth Clarke recommended it, you will recall.

But there is no way that this option was ever acceptable as the end game. It always was sub-optimal, and was tolerable only as a short-term interim measure. If it is imposed on us by the XRs, we will be worse off than when we were in the EU. Frying pan and fire are still very much in my mind.

Yesterday, I was in London at a Leave Alliance meeting and there it dawned on me how ill-prepared we are to fight the coming battle. It is absolutely true that Whitehall didn't have a plan, and Vote Leave certainly doesn't have one. And, of course, neither does Farage. We are, therefore, at risk of losing the battle before many of us even realise what is at stake.

The media are thrashing around, reinventing the wheel and dealing with issues at a pathetically simplistic level. Politicians likewise are so far behind the curve that they're struggling to catch up. Most of them never will.

With tiredness temporarily at bay, I will return to the issues today, adding to this blogpost, and then do a round-up for the overnight post. To my mind, there are two immediate issues to resolve. Firstly, when and under what conditions should we invoke Article 50? Second, how do we resolve the conflict between Single Market participation and the requirement to allow free movement of persons.

In the meantime, treat the "comments" as an open thread, and I'll take up the conversation on this blogpost as it develops.


Update: A change of mind ... I'm preparing a new post, on the timing of our Article 50 notification.

Richard North 29/06/2016 link

EU Referendum: the Liechtenstein solution

Tuesday 28 June 2016  

Throughout much of the referendum debate, it has been assumed that, in order to continue participating in the Single Market, we would have to accept freedom of movement. Any number of high-ranking Commission officials have warned us that this is "non-negotiable".

Now, at last, we are beginning to have the debate we should have had before the referendum, we have the know-all BBC creeping out of the woodwork, together with others, to remind us of this, as more and more Johnny-come-latelys leap on the EEA bandwagon, including the revered Chatham House.

However, we should have known that the Commission officials (and the European politicians who joined them), were not telling the truth about freedom of movement – or at least the whole truth in respect of the EEA.

Almost too late, we discovered something hidden in plain sight: the fact that the EU has been quite willing to negotiate with one of the three Efta/EEA states on freedom of movement. Furthermore, they have come to an amicable solution, which has allowed it to secure an amendment to the treaty giving it a permanent opt-out to freedom of movement. The state concerned now operates a quota system little different in principle to the Australian points system.

That the state is the principality of Liechtenstein need not worry us. It may be a tiny micro-state with a population of 37,000 spread over an area of 61 square miles – less than half the area of the Isle of Wight – but it is a fully-fledged Contracting Party to the EEA Agreement. It has assumed exactly the same rights and responsibilities as any other Efta state.

Furthermore, Iceland has used exactly the same provisions to suspend free movement of capital following the 2008 financial crisis, demonstrating that there is a real and effective option within the EEA Agreement which could be available to the UK, and solve a lot of problems.

I've already told the story in parts, but for the record, I am now bringing it together under one head in this blogpost. That way, the  media and politicians can ignore it properly, instead of pretending they haven't seen it. I've also written up a version in Flexcit, so that they can ignore it there as well, leaving its 90,000-plus readers better informed than those who seek to instruct us.

The story starts – and a fascinating one it is – before Liechtenstein joined the EEA on 1 May 1995. We can actually take 10 March 1995 as the beginning, when the EEA Council - part of the formal consultation structure set up under the agreement – looked at the situation dominating Liechtenstein's entry.

The Council recognised that Liechtenstein had "a very small inhabitable area of rural character with an unusually high percentage of non-national residents and employees". And it decided that this microstate could easily be swamped by immigrants if unrestricted free movement of workers was permitted. Like the UK, but at the opposite end of the scale, the country was not able to absorb unlimited numbers.

Moreover, the Council acknowledged "the vital interest of Liechtenstein to maintain its own national identity". It thus concluded that the situation "might justify the taking of safeguard measures by Liechtenstein as provided for in Article 112 of the EEA Agreement".

Article 112 is part of the "safeguard measures" – popularly known as the "emergency brake". Where serious economic, societal or environmental difficulties of a sectorial (sic) or regional nature arise, which are liable to persist, it allows Efta states (but not EU Member States) unilaterally to take appropriate measures to resolve them. EU Member States have to rely on the Commission to take action.

Back in 1995, with a massive immigration problem looming, the EEA Council asked all members to "endeavour to find a solution which allowed Liechtenstein to avoid having recourse to safeguard measures". However, no long-term solution was found so a temporary expedient was arranged: transitional arrangements which allowed the country to impose "quantitative limitations" on immigration until 1 January 1998. These were incorporated into Protocol 15, appended to the Agreement.

The next move was towards the end of 1997, just before the end of the transitional period. There had been no long-term solution found so Liechtenstein unilaterally invoked the Article 112 safeguard measures. By this means, it kept the existing immigration restrictions in place when the transitional period ended. 

There were further attempts to resolve the situation in 1998, which were unsuccessful. Then, on 17 December 1999 after a further review, the EEA Joint Committee (another of the formal EEA bodies that mysteriously have "no influence") decided that the "specific geographical situation of Liechtenstein" still justified "the maintenance of certain conditions on the right of taking up residence in that country".

This unstable situation, however, could not be allowed to last. In order to resolve it, the Joint Committee came up with a proposal for a longer-term solution. Liechtenstein was to be allowed to introduce a quota system controlling the number of workers allowed to enter the country. This was given formal status by an amendment to Annex VIII of the EEA Agreement, setting out what were called "sectoral adaptations", cross-referred to Annex V on the free movement of workers.

As a formal amendment to the EEA Agreement, the decision provided for a new transitional period until 31 December 2006, and allowed for the new measures to apply subject to a review "every five years, for the first time before May 2009".

After reviews in 2009 and in 2015, it was concluded that there was no need to make any change to the current rules. The provisions on the "sectoral adaptations" could remain unchanged. Under the current arrangement, Liechtenstein issues 56 residence permits for economically active and 16 permits to economically non-active persons each year. Half of the totally available permits are decided by lottery, held twice a year.

The numbers involved are, of course, small beer, but Liechtenstein is a tiny country. What matters is that a precedent has been set. Within the framework of the EEA Agreement, an Efta state has suspended freedom of movement and replaced it with a quota system for what amounts to an indefinite period.

This is where the situation currently stands. Thus, whatever the EU might declare in terms of freedom of movement being "non-negotiable" for EU Member States, it is undeniable that it is negotiable within the framework of the EEA Agreement, as it applies to Efta states.

Therefore, if the UK chooses to follow the Efta/EEA option as an interim solution to expedite the Article 50 settlement, once the agreement is adopted it can follow the procedural steps pioneered by Liechtenstein. And by this means, it can impose limits on immigration from EEA states.

In terms of applying a quota system, it should be noted that, in the Australian-style points system, only 23 percent of the migrants admitted come under the points system. The overall limit is set by way of an arbitrary quota, set annually – currently at 190,000. This is, by any measure, a quota system.

To that extent, the UK can have some of its cake and eat it. The "Liechtenstein solution" potentially gives our negotiators far more flexibility than at first imagined. We accept the EEA acquis as it stands, but negotiate "sectoral adaptations" that bring the Agreement into line with UK needs. This should help us reach an amicable settlement with the EU, while keeping us in the Single Market.

Richard North 28/06/2016 link

EU Referendum: we're all leavers now

Monday 27 June 2016  

"There can be no doubt about the result", said David Cameron in a statement to the House this afternoon. And with that, technically there are no "remains" any more. We are all "leavers" now.

And Robert Neill MP asks if Article 50 is the only legal way of leaving the EU. Cameron agrees. It is the only legal way that the job can get done. Owen Paterson asks if we will get a White Paper. Cameron answers that we will get multiple reports from the newly formed Brexit unit.  

Carswell ask if some of the architects of the Vote Leave campaign will be involved in the work of the new Cabinet office. Cameron replies that the referendum campaign is over. In other words, "no".

Previously, Ken Clarke had asked Mr Cameron to consider joining the EEA. This is for the next Prime Minister, says Cameron - but the issue is now firmly on the table. It's was a halfway house for nations joining the EU, and it can serve as a halfway house for the UK leaving.

And then there's Flexcit. We're working hard on producing another, updated edition. Already one of our first recommendations has been adopted, with the appointment of the Chancellor of the Duchy of Lancaster as head of the Brexit unit, working inside the Cabinet Office.

We look forward to many more of our recommendations being adopted.

Richard North 27/06/2016 link

EU Referendum: getting the strategy right

Monday 27 June 2016  

With David Cameron skulking in No 10, declining to face the challenge of dealing with the aftermath of the referendum, and Corbyn's opposition party crumbling before our very eyes, the nation is currently without an effective government or opposition.

The ruling Conservative Party has shattered into warring factions and no one group has sufficient support to be able to elect a leader outright, while the plotters continue to position Alexander (aka Boris) Johnson as leader-in-waiting.

Meanwhile, Sky News's Faisal Islam "reveals" that Vote Leave doesn't have an exit plan. Having spoken to a Tory MP from Vote Leave, he learns that the plan does not exist. Faisal quotes the anonymous MP as saying: "There is no plan. The leave campaign don't have a post-Brexit plan".

The apparent absence of any such plan is adding to the uncertainty but, in terms of the media narrative, this is undoubtedly deliberate. Faisal knows full well of the existence of Flexcit which has had well over 80,000 downloads and is approaching the 100K mark. Yet he – and even journalists who have previously mentioned it - are studiously ignoring its existence.

There is a certain wilful stubbornness about this, which defies rational expectation. Even MPs and others, anxious to block the ascendency of Mr Johnson, and who are thus determined to produce their own plans, are ignoring the material in front of them, preferring to reinvent the wheel, mostly in any shape but round.

We thus see all around us the beginnings of the debate that we should have been having before the referendum, but at so basic a level that issues we were discussing four or five years ago are now only just being aired.

But in their rush to come up with ideas – and also deal with constraints of Article 50, we see people reveal that they have not even mastered the basics of the subject on which they are now presuming to instruct us mere mortals. More specifically, there are those who are seeking to avoid the use of Article 50, or by-pass it in some way or another, so that they can bring exit negotiations to a speedy and satisfactory conclusion.

You would think that, after 43 years of membership of the Communities, these people would have realised that the European Union is a treaty organisation, of which the United Kingdom is a part. And with that in mind, you might think that they would be aware that provisions for leaving the organisation are bound up in international and treaty law.

Therefore, in framing any strategy for leaving, you would expect people to understand that they must take full note of treaty, etc., provisions – which must be taken as absolutes in determining the general framework of any exit strategy.

On that basis, it is a given that it is not in any way politically or legally realistic to frame any exit strategy which does not conform fully to the provisions of international and treaty law. Strategies really need to be road-tested for compliance, before they are given a public airing.

For the likes of the odious Johnson, Gove and many others, therefore, I am addressing the general principles which strategists should keep in mind. These essentially amount to five points.

Firstly, the right of a Member State to leave the EU lies outside the EU Treaties. The Treaties neither confer the right to leave or impose any conditions which might affect the decision. As Article 50 of the Treaty of the European Union (TEU) itself states:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
Article 50, therefore, simply recognises the state of the art. This Article applies only after the decision to leave has been made.

Secondly, the procedural choices on leaving are then limited by international law. We are not allowed pick 'n' mix options, dipping into different treaties to come up with our own desired mix.

We are bound by the principle of lex specialis derogat legi general (special law repeals general law), which is regarded as a fundamental tenet of international law. In short, whenever two or more laws or treaty provisions deal with the same subject matter, priority goes to that which is more specific.

Where Article 50 makes specific provisions for withdrawal, these take precedence over more general provisions, as in the Vienna Convention on the Law of Treaties (VCLT). We do not have the choice of using one or the other. Our choices are determined by lex specialis.

Thirdly, and subject to my further comments, until the Article 50 procedure is complete, the UK remains bound by the provisions of the EU Treaties, with all the rights, responsibilities and obligations.

As parties to the Treaties, we are obliged under international law to conform with their provisions. This general obligation is conferred by virtue of Article 26 of the VCLT, under the universally recognised provision of pacta sunt servanda: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith".

As one of the major guarantors of the writ of international law, it is inconceivable that Her Majesty's Government could countenance a breach of pacta sunt servanda. The international ramifications would be profound, with implications far beyond just relations with the Union and its member states. It would gravely weaken the international standing of the United Kingdom.

Therefore, inasmuch as we are obliged to resort to Article 50 by virtue of lex specialis, the principle of pacta sunt servanda obliges us to comply with its provisions.

Fourthly, and notwithstanding the above, any sovereign state, on grounds of its own choosing and disregarding international and treaty law, can unilaterally breach any treaty provisions or unilaterally abrogate any treaty to which it is party. However, while a state can exercise this absolute right, there are consequences to such actions.

No state can bind another outside the framework of international and treaty law (short of invasion and occupation – or other limited means) and thus, if we place ourselves outside this framework, we have no means of controlling the actions of others states – and nor can we entertain any rightful expectations of their actions.

With the EU Treaties in mind, there are no provisions within the Treaties to expel a member state – but this does not mean that the UK cannot be expelled. Specifically, in legal terms, where any party – intentionally or otherwise – is in material breach of treaty provisions, the other parties are entitled to "invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part" (Art 60 VCLT).

This could apply if we choose to repeal or amend the European Communities Act, or take any other unilateral action before the conclusion of the Article 50 procedural steps. Action such as limiting the jurisdiction of the ECJ, or premature termination of EU budget contributions, which serve to disapply treaty provisions, could be deemed to be a material breach of the treaties.

In this event, the other parties may decide to terminate the Treaties as a whole. They would be entirely within their rights to do so. One should not need to set out the consequences to the UK. They would be catastrophic.

Finally, for those who would seek to negotiate with Member States without triggering Article 50, they must know that this is not a viable option.

In terms of any trade agreement, states could not negotiate because this is an exclusive EU competence. This mechanism is also ruled out because member states, neither individually nor collectively, could require the EU to give the UK access to its agencies or their ongoing programmes.

Furthermore, any agreements reached with Member States outside the Treaty framework cannot be binding on the Union. In this instance, the principle of pacta tertiis nee nocent nee pro sunt applies (a treaty binds the parties and only the parties; it does not create obligations for a third state) applies. This is set out in Article 34 of the VCLT.

Thus, while it may be valid to conduct preliminary (scoping) talks with contracting parties, these cannot be taken to be part of the formal withdrawal process.

Pulling all these points together, it should be noted that this is all seriously basic stuff. You don't have to be a Cambridge don, or a Monnet Professor to work this out. It is freely available on the internet and should be known to anyone embarking on devising an exit strategy.

What this all boils down to, though, is that there is no lawful means by which we can secure an exit without using Article 50. And only once the Article 50 procedure is complete can we think of repealing the European Communities Act. So clear is this that, at this stage in the debate, there should be no need for discussion. The matter should have been treated as settled a long time ago.

Therefore, I am beginning to get extremely irritated at the lack of preparedness, the lack of knowledge and the sheer amateurishness of leave campaigners. A lot of what I am seeing is in multiple breach of treaty and international law and could not therefore be countenanced by any responsible government. For campaigners to offer such poor work is, to be blunt, irresponsible.

We are getting to the point where developments are proceeding at a very rapid pace, with potentially dangerous consequences. We no longer have to time to spoon-feed people with Janet and John explanations, carefully couched so as to smooth over ruffled egos.

This applies especially to MPs, all of whom should be up to speed by now. They should know what they are talking about, rather than be producing amateurish tracts which show them to be way behind the curve. They have responsibilities to the public and they are not living up to them.

With that, we need people to focus on reality - to stop playing games. There should be no more discussion about whether Article 50 is optional. It is not. People need to accept that and prepare accordingly. Until and unless that is fully accepted, there is no hope of any progress.

Richard North 27/06/2016 link

EU Referendum: the opportunity we didn't deserve?

Sunday 26 June 2016  

000a Booker-026 govern.jpg

"Are we still capable of governing ourselves?", is the headline of the Booker column today. There could be no better summing-up of the extraordinary situation in which we all find ourselves this weekend, he writes, than the quotation at the beginning of The Great Deception, the history of the EU we wrote a decade ago.

In 1950, when steps were first being made to create a supranational government for Europe, Britain's then-foreign secretary, Ernest Bevin, memorably observed "if you open that Pandora’s box, you never know what Trojan 'orses will jump out".

Says Booker, despite having spent much of the past 24 years trying to explain why Britain's decision to submit to that weird supranational form of government had been, in Lady Thatcher's words, "a political error of the first magnitude", he confesses that on Thursday night he was just as startled as anyone by how the referendum results unfolded.

So dismally had the campaign been conducted by both sides that, right to the end, he was predicting as the best outcome a 48-52 per cent split in favour of Remain – except that it turned out to be exactly the other way round.

Booker, of course, was not the only one to call it wrong, but now we are faced with this Brexit earthquake, Booker is reminded of a scene in a Marx Brothers film where one of them asks a bystander to choose five cards before putting them back in the pack. "Do you want them one at a time" he asks, "or all at once?". When the answer is "all together", he throws the cards up in the air so that they shower all over the place.

Such is our position today – when the cards of Britain's future seem suddenly to have been scattered in all directions. Now Humpty Dumpty has fallen so unexpectedly off his wall, where are all the king's men to put him together again?

The last people to advise on how we should now proceed are those leaders of the Vote Leave campaign, who we all feared would lose us the battle by their refusal to offer a properly worked-out "exit plan": one capable of neutralising Project Fear by allowing us to continue trading, like independent Norway, just as freely with the single market as we do now; but without the political baggage and without having to obey three quarters of the EU's laws.

That, says Booker, is the only intelligent way to go. Yet, as he has asked before, are our politicians and civil servants any longer capable of negotiating such a sensible withdrawal? For decades they have become so used to working within the claustrophobic supranational Brussels system that one has to wonder whether we are any longer capable of governing ourselves.

The real reason why the British people voted as they did, it seems, was not due to the lamentably inadequate arguments put forward by Vote Leave, but by a deep sense that they no longer wish to be ruled by a system they don't understand and by a remote, self-serving political elite, wholly unresponsive to their concerns – exactly that sense of alienation we now see welling up across the EU.

That is why we see crises piling in on the EU from all sides, as that wishful thinking dedicated to suppressing national identity collides with the sense of national interest in all directions – the euro, migration, Ukraine. All these are self-inflicted wounds, and now Brexit adds yet another.

Booker then reminds us that the process of disentangling ourselves from this infinitely complex supranational system will be a much more difficult and lengthier task than most people realise.

"Have we slept so long cocooned in its emasculating embrace that we are no longer capable of rising to that challenge in the grown-up way that it requires?", he asks. Such is the task now before us. Otherwise, having opened Pandora's box, we shall see all those Trojan horses running rings around us – in a way that may cause us to look back on June 2016 as the opportunity we didn't deserve.

Richard North 26/06/2016 link

Brexit: alarm bells

Saturday 25 June 2016  

Now that we are firmly on the path towards leaving the EU, to focus turns to the divorce settlement. But, as an indication of how unprepared we are, we have the pretender to the throne, Alexander (aka Boris) Johnson, still dickering about the application of Article 50, suggesting that it is not necessary to invoke it.

It really is not good enough to have such a basic matter unresolved at this stage. We were writing about it in 2012 and its application has long since been resolved, by the government and by two of the country's leading constitutional lawyers.

Yet still we're having Johnson, Redwood and sundry others arguing the toss – putting the entire negotiations at risk. After all, if these people can't even deal with the basics, there seems little chance of getting to grips with the more complex matters.

When the Article 50 issue has been so thoroughly aired and apparently resolved, and we're still having to revisit the same sterile arguments, over and over again, it is time to sound the alarm bells. Article 50 is the only lawful way to withdraw from the EU. These people need to accept the unarguable, and move on.

However, this controversy over this apparently minor technical point is but the visible steam on a seething cauldron as the Conservative Party breaks up into warring factions, each seeking to seize the prize of the leadership - and control of the renegotiation process.

That process itself will define the shape of post-exit Britain but itself has the potential to bring chaos and destruction to a level unimaginable in modern European politics. Yet, as the ship as it heads for the rocks, Captain Cameron has abandoned ship and madmen squabble over who holds the wheel. 

At the front - for the moment - is the ghastly Johnson making his bid for power, alongside his running-mate Michael Gove. Behind him are men (mostly men - I see no women emerging) whom you would cross the road to avoid. They have ideas so extreme and so devoid of reality that one can scarce believe that what they are pursuing is seriously intended.

These are men with almost autistic characters. They can face down truth with unwavering stares, refusing in any way to accept the consequences of their actions, as they focus manically on their chosen course. And in this case, they are not ruling out unilateral abrogation of the EU treaties - relying on Crown prerogative, which does not even need the assent of Parliament. They would drive us onto the rocks and applaud each other for their skill.

These are worrying times, more worrying than people can imagine - with a power vacuum at the centre which may not hold until October to allow an orderly transfer of power. The referendum has lifted the lid on that seething cauldron. What we see inside is not a pretty sight. It has the potential for much danger.

The referendum has been the cover for a coup. Vote Leave was never about winning the referendum. It was always about taking over the Conservative Party. That's why the Cummings-Elliott axis were happy to let Farage do the preening over the count. They were too busy executing their coup. Now, Cameron has been deposed and the plotters are storming the palace. Cummings is already behaving as if he was chief of staff at No 10. 

Corbyn's opposition in disarray, their leader a weak, empty man. With him in place, there is little Parliament can do to stop the zealots taking over. What the plotters can do, and have the potential to do, is not something any sane person would even want to imagine.

With little idea of what is really going on, we thus see some media - dominated by prattling girlies (of both sexes) - on about us being "out of the EU". We're not, and there's a long way to go. There is very little chance of achieving an orderly transition - if indeed that is possible - if the wrong people grab the wheel.

In place of that, we face the possibility of an "association" deal being negotiated. On offer will be a second-class status little different to that of Ukraine, effectively under the control of the EU. It will leave us, as Cameron so often warned, without any seats at any of the "top tables". The worst of all possible worlds.

In the absence of a coherent exit strategy - as Westminster descends into chaos - this option may seem increasingly attractive to many. It will be hailed as a way of reimposing order. But it puts us in the position of supplicants as the siren calls for order and certainty swell in volume. Thus will be the choice - chaos or subjugation, with the idea of freedom a distant memory.

That points the way to a different coup, one being prepared for us in Brussels, with the pressure on to bounce us into early negotiations before anyone is ready. There awaiting us will be a "honey trap" - increasingly attractive compared with the chaos at the centre. We may be watching ourselves leap from a sizzling pan into a roaring fire.

Richard North 25/06/2016 link

EU Referendum: so what next?

Friday 24 June 2016  

While they're sweeping up all those chicken heads, we have Flexcit for you: it's all worked out here. Just follow the instructions and you won't go far wrong. Written by hundreds, read by thousands (currently over 80,000), this is the definitive exit plan, as noted by The Register.

There is also the video which helps explain some of the issues, and the short version here.

Over the next hours, weeks and months we are going to be assailed by ill-informed comment in super-tanker quantities, much of it from the BBC whose David Dimbleby referred to Article 50 as "Chapter 50" - reflecting the degree of knowledge and insight in the institution.

In this and other media organisations - and in government itself - there is terrifyingly little knowledge of the workings of the EU, and next to none about how we should extract ourselves from it. Listening to some of the offerings is painful.

However, with the promised resignation of Mr Cameron as Prime Minister, the excellent news is that he has had the sense to to defer the Article 50 notification to his successor. It will not - as Cameron suggested it might (another example of FUD) - be invoked immediately.

That gives us some time for reflection and planning, and also some mature consideration as to timing.

Key events are the French presidential elections in May next year and the German federal elections, which will be held between 27 August and 22 October 2017. Until those are over, and the new (or existing) German Chancellor is bedded in, there is not much point in invoking Article 50. There will be no-one on the other side of the table, capable of making a decision.

The new prime minister must also decide on whether he (or she) wants the two-year article 50 negotiating period to run into our own general election period. There might be some sense (but also some hazard) in setting the period so that the tail end straddles the election. That way a putative settlement can be part of the election mandate sought.

There are advantages and disadvantages to this, and a national conversation might be appropriate.

Also, we have to deal with the assumption that the negotiation period will necessarily be two years. It can be extended by unanimity. However, there is nothing in the book which says the application for an extension has to be left to the last minute. It could, in fact, be the first order of business. A British government could start the talks with a proposal to extend the period - taking the pressure off negotiators.

And there, we are going to have to see some serious realism. Even with the best will in the worlds - adopting the EEA core acquis unchanged - concluding the settlement within two years is going to take Herculean effort. We are going to have to throw a huge number of concessions off the sledge to make it happen.

The end result, therefore, is going to be neither pretty nor clean. And there are going to be plenty of naysayers warbling: "I told you so", when we see no immediate savings on contributions, and no immediate cut in immigration.

But even Dan Hannan has managed to understand enough of Flexcit (not that he would ever admit it) to realise that Brexit is a process, not event. By the time he has repeated that point enough times, he will have convinced himself that he invented it, and will dine out on his own cleverness

The crucial element, though, is that the extraction will be phased. The legal-politico task of withdrawing from the EU treaties is only the start of a long process, a means to an end - an opportunity rather than a reward (some more slogans for Mr Hannan to steal). What we do then will determine whether Brexit will have been worth it - there is danger as well as opportunity.

A government and media bereft of ideas, however, will need guidance. And it is a truism that most new policy initiatives come from outside government not within. After all, the very idea of joining the EEC came as a result of external agitation and lobbying. A tolerable post-EU order, therefore, is going to be driven by minds outside the bubble.

Fortunately, so much of the work is already done. It is there to steal, and any number of clever Hannan-clones can read our work and claim authorship. We can't stop them doing it and, if that is what is necessary, some of it will have to be tolerated. Small minds can't cope with "not invented here" syndrome.

Nevertheless, Flexcit is sufficiently well established for many of its readers to recognise the origin or parts when they appear. To see them used will be something of a reward. To know that their users could not bring themselves to acknowledge the origins will tell its own story - one we can see unfolding for our entertainment over the next two years.

A new sport is born - Flexcit spotting. Step forward Mr Hannan. In the meantime, as Mary Ellen says, we can spend a little time partying.

Richard North 24/06/2016 link

EU Referendum: so it's out then!

Friday 24 June 2016  

Guest post by Pete North
Well, we've done it. Defying all of my expectations. Firstly, I want to get some things out of the way. Though I was wrong about the result I think the Vote Leave campaign was dismal. I believe it is responsible for this being a slim victory and not a landslide. Those ideas put forth by the leave camp have been wholly disgusting and factually incorrect. I do want to leave the EU but I do not seek the Britain as envisaged by the Tory right, the Labour left or Ukip. Thankfully, reality stands in the way of that.

As campaigner and contributing editor at The Leave Alliance, you should know this. The official Leave campaign was one widely opposed and we never wanted the likes of Boris Johnson or Farage. These are not informed men and they have no idea what they are talking about. Our ethos at TLA was to make a liberal case for leaving the EU, seeking not to dodge the political realities.

To that end, we produced a comprehensive Brexit plan which is rumoured to be required reading in the civil service. We make the case that leaving the EU in a single bound is impossible as it is damaging both to the EU and the UK. And so our recommended path is similar to that of Norway whereby we retain single market membership and freedom of movement.

The funding for the official Vote Leave campaign dries up today and that malign entity will be dismantled. What Ukip says will no longer be relevant. This is now a decision for the adults.

The majority of MPs are opposed to leaving the EU and so they absolutely will not support any moves to leave the EEA as well and so there are democratic safeguards in place to ensure extreme measures are not taken. 

We are meeting on Tuesday to discuss future direction. The proposal will be to continue making the case for Flexcit and for Efta membership under the banner of TLA. It sees us as close allies of the EU but not subordinate to it, which I believe is best for the UK. It retains most of the advantages of the EU without requiring a political merger and gives us control of key policy. I think it is the right move.

This is not about hostility to Europeans or Europe. This is hostility to our political class who continued to commit us to further subordination without public consent. One way or another, Britain will remain a liberal and tolerant nation. We are simply choosing a different mode for our relations with Europe. 

The EU is based on a dogmatic principle of supranationalism. We are departing from that to a more multilateral mode both in Efta and the WTO. This is not the end of the world and I can assure you Ukip and the likes will not get their way. We know this because they only scored 14% at the general election. There are more of us than there are of them.

As a committed leaver for all of my adult life I detest Ukip and what they stand for. And so do our thousands of supporters. I believe this is the right move because the question is now resolved, we can reboot British politics, redesign British governance and move on from a 40 year quarrel. Politics will be far healthier for it at the end of this process.

In the meantime, nothing happens immediately, there is no need for alarm. Brexit is a process, not an event and we will see in due course that the propaganda spouted by the remain campaign was a gross distortion of the facts. 

Though if you wish to guarantee Britain remains a liberal and tolerant country, it will require of you that you maintain current levels of political particpation and speak up for what you believe in. We have been disengaged for far too long which is why we are even here in the first place.

There will be more to discuss and this blog will continue as normal and I expect there is more work to be done. Meanwhile, enjoy the party. You have earned it.

Pete also blogs here, on Pete North's political blog.

Pete North 24/06/2016 link

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