Richard North, 30/04/2017  
 


For months we have been predicting this, and now in today's column, Booker gets to acquaint his readers with some "very uncomfortable realities" which are about to intrude on the bubble of make believe in which our Government has been hiding.

Last Wednesday, before the EU's leaders gathered for Saturday's "summit" where they proclaimed their united response to Britain's demands, the loudest alarm bell yet was sounded by Angela Merkel in a speech to the German parliament.

The British, she said, have simply been "wasting time" living in a cloud of "illusions" but now we will have to start facing the consequences of excluding ourselves from the system which gives us unrestricted access to easily our largest export market, and the source of 30 percent of our food.

Without some very deft negotiations and some serious concessions on our part – which may include continued subordination to EU law and the ECJ – there is no question that border controls will be re-established on all our frontiers with the EU (including that in Northern Ireland). The days when 12,000 trucks a day could cross freely from Dover to Calais, and much else, will be over.

And only yesterday, the European Council made it clear yet again that there is no way Theresa May and her colleagues are going to walk away with any one-off "trade deal" of the kind they are imagining. And the practical implications for Britain of a poor deal (or none at all) are horrendous.

That is precisely why some of us have long tried to point out that the only conceivably sensible way for us to leave the EU, wholly desirable though that is, would be to have remained in the EEA and to join Norway in the European Free Trade Area (Efta).

But, instead of a sensible debate in the aftermath of the referendum, we have seen the noise-makers predominate, dragging the discourse down to a terrifyingly superficial level.

At the centre of all this we have the politicians, led by the "Ultra-Brexiteers" around Teresa May, refusing to consider what this could have given us: continued trading as we have now; exemption from most of the rulings of the European Court of Justice; freedom to negotiate our own trade deals with the outside world; even a unilateral right under the EEA agreement to exercise, in our national interest, some selective control over immigration from the EU.

While failing to do the necessary homework, and by rigorously excluding contrary voices, the Ultra-Brexiteers have sought to dominate the debate – with the willing help of their friends in the legacy media. They have not begun to grasp the realities of what would be needed to achieve a properly workable disengagement from that system of government we have been part of and ruled by for 44 years.

Earlier on, where it came to considering our approach to the Article 50 negotiation, we should recall that people such as Sir Ivan Rogers were recommending that we should "go long", setting out our proposals in some detail, thus forcing the "colleagues" to react to our agenda.

Instead, Mrs May chose to keep the notification letter short, packing it with "motherhood and apple pie" clichés and vague – and unrealistic – aspirations. She skirted the "hard" issues and made no attempt to defuse what were obviously going to be key issues in the negotiations.

As a result, the UK Government has largely handed the initiative to the EU which has been steadfast in setting out its agenda, and sticking to it, leaving the "Ultras" huffing and puffing at the indignity of it all.

In actuality, the EU's agenda is pretty pedestrian but, compared with what Mrs May had to offer, it has far more substance. Furthermore, it sets out the structure for the negotiations which are going to work to the disadvantage of the UK, in refusing parallel negotiations on trade.

Thus, "Team Brexit" will shortly be brought up against all those hard realities to which they have remained oblivious – or have been trying to avoid. And in many ways, they are going to be far more unpleasant than they can yet imagine. Having talked up expectations, Mrs May is going to find it very hard to row back on her statements about EU payments and the writ of the ECJ.

Says Booker, that is what Sir Ivan Rogers was hinting at when he spoke of “ill-informed and muddled thinking” at the top of government, before he resigned last December as our top man in Brussels.

And it is what Mrs Merkel means when she says that British ministers have so far just been wasting time in chasing "illusions". But how many of our own politicians over the next few weeks of election campaigning, Booker asks, will be pointing any of this out; any more than we will hear it from the BBC and the rest of the media?

For reasons long predictable, we are heading for some very nasty shocks and real trouble. The Brexit dream stage is over. Merkel's chilling words last week were only the start of the new stage we are now so blindly drifting into.

Nor can there be any comfort in the thought that the EU's negotiating guidelines are simply an opening gambit which can be discarded when the going gets tough. In procedural terms, these guidelines form the mandate for the negotiating team and have biding effect. If the negotiators need to depart from them, then they will have to go back to the European Council.

Nor can it be said that the elements are new or different from the normal procedural steps adopted by the EU. For instance, their stance of "nothing is agreed until everything is agreed" is a standard principle which the EU adopts almost universally. Within that context, insisting on a phased approach to the negotiations makes absolute sense. Taking part in complex and highly technical trade negotiations requires a considerable investment in time and scarce manpower resources, so it stands to reason that they will not want make the commitment until the basics are agreed.

These, according to the guidelines, have been distilled down to three essential – the fate of expats, the financial settlement and the status of the land border with Northern Ireland.

Considering that the negotiations proper cannot start until mid-June (at the very earliest), ten weeks have been clipped off an already perilously short negotiating period. And any one of the three headline issues could take many months to resolve.

But it would be dangerously wrong to believe that only the three headline issues need to be resolved before we can happily sit down and discuss trade.

Tucked into the negotiating guidelines are the requirement, for instance, that the Union should agree arrangements as regards the Sovereign Base Areas in Cyprus and recognise in that respect bilateral agreements and arrangements between the Republic of Cyprus and the UK.

That is by no means as simple as it sound, but then the guidelines observe that, following Brexit, the UK will no longer be covered by international agreements "concluded by the Union or by Member States acting on its behalf or by the Union and its Member States acting jointly".

Yet, says the European Council, it expects the UK to honour its share of all international commitments contracted in the context of its EU membership. In such instances, it says, a "constructive dialogue" with the UK on a possible common approach towards third country partners, international organisations and conventions concerned should be engaged.

Bearing in mind that there are currently over 900 such agreements - including some costly and highly contentious provisions on climate change – on refugees and other matters, it is not sensible to believe that all these matters can be dispensed with quickly. These agreements have been concluded over many decades, and many will require detailed scrutiny before we can continue to support them.

Not content with that, the European Council also asserts that the withdrawal agreement will need to address potential issues arising from the withdrawal in other areas of cooperation, including judicial cooperation, law enforcement and security. These matters could take some time to conclude.

Then there is the matter of the future location of the seats of EU agencies and facilities located in the UK, with the UK expected to facilitate their transfer. Not said, but nonetheless necessary, is continued participation in other agencies – and the price to be paid.

Following that, there is the extremely sensitive issue of making arrangements to ensure legal certainty and equal treatment for all court procedures pending before the ECJ. The European Council is insisting that the ECJ should remain competent to adjudicate in these procedures after Brexit.

Similarly, says the European Council, arrangements should be found for administrative procedures pending before the European Commission and Union agencies upon the date of the withdrawal that involve the United Kingdom or natural or legal persons in the United Kingdom. It adds that arrangements should be foreseen for the possibility of administrative or court proceedings to be initiated post-exit for facts that have occurred before the withdrawal date.

There is then the issue which nearly broke T-TIP. The withdrawal agreement has to include appropriate dispute settlement and enforcement mechanisms regarding the application and interpretation of the withdrawal agreement, "as well as duly circumscribed institutional arrangements allowing for the adoption of measures necessary to deal with situations not foreseen in the withdrawal agreement".

This should be done, says the Council, "bearing in mind the Union's interest to effectively protect its autonomy and its legal order", including the role of the ECJ. Almost certainly, the EU will be looking for the ECJ to adjudicate on the withdrawal agreement.

And beyond all this, of course, there is the matter of negotiating the transitional agreement. If this has to be tied in with a secession treaty, it alone will be a complex document which, in the ordinary course of events, would take years to agree.

Standing back, therefore, to suggest that anything other than the most basic of frameworks on trade can be settled by the time we leave is being highly optimistic – unrealistically so. This is going to have to wait for the UK as a third country to make the running.

The worst of this is that many of the problems we are confronting were avoidable, had we decided to follow the Efta/EEA route. And even now, it is not too late to make moves in this direction – allowing the negotiations to continue via the EEA, after we have left the EU.

But now, as Booker says, we must wait to see what impact this has on the election campaign. None of us are sanguine that the issues will be given a proper airing, although the less that is clarified now, the greater will be the problems of the future.






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