Richard North, 26/05/2017  
 


Yesterday, for the second time in a week, I addressed a group of people on our prospects for Brexit, outlining the very serious problems that confronted us.

What both meetings had in common was that in each there was a single person who rounded on me for my "negativity". Each in their own ways argued that the government was taking the correct line, supporting Mrs May's assertion that no deal was better than a bad deal.

However, getting to the core of their arguments, two things emerged. Firstly my critics spoke from positions of profound ignorance. Coincidentally, both quoted The Daily Telegraph at me, but neither had even read much less studied any official documents, such as the EU's negotiating directives.

Unwittingly, they were exactly confirming O'Leary's comment that the British people were deluding themselves, talking only to themselves and reading UK newspapers with a constant diet of "utter rubbish".

Basically, when it comes to the Brexit outcome, those who deny the extent of the hurdles and take an optimistic view are relying on a fact-free belief system. These are the True Believers (possibly spelt "Beleavers") to whom a successful Brexit is an article of faith.

Whether or not we are strictly dealing with this type in this article, but it is certainly an example of unwarranted optimism based on fact-free assumptions.

Contradicting our concerns about UK commercial aviation post-Brexit, expressed in yesterday's piece, we see a record of the Abta travel law seminar in London, addressed by Lawyer Philip Torbol, a partner at K&L Gates in Brussels.

Opining of the industry's prospects after we leave the EU, Torbol considers that our exit is "unlikely to force changes to flights between the UK and EU", apparently supported by an assertion by Monarch Group chief executive Andrew Swaffield, who declared: "Air passengers are not a constituency any political party wants to say to: 'You can't go on holiday'".

Torbol thus decides that: "The negotiations will be tough. There could be conditions that inadvertently affect travel in terms of higher prices, but it's hard to see flights stopping".

One then has to bear in mind that Torbol is a lawyer to appreciate the incredible fatuity of his next claim, as he says: "If the EU becomes unreasonable as a bloc, some countries will go it alone. Spain will say: 'We don't want to lose these tourists [from the UK]'". And joining in this cheerful optimism is lawyer Claire Ingelby, director of MB Law. "There is", she says, "an underlying confidence that a solution will be found".

We get a further flavour of this from another report of the same event, which also cites Torbol. This time, he is saying: "Tourism is an area where nobody has any interest in making life difficult for each other".

Torbol then adds: "In general, we don't expect that this is going to be an area where tourists are going to be held hostage in a difficult negotiation", before going on to assert that "There will be some issues for providers but for distributors there will be very little disruption".

This lawyer is then said to admit that aviation was going to be the "most sensitive" issue when it comes to travel, because the UK was unlikely to remain in the European Common Aviation Area, as this requires staying in the EU's Single Market.

"If there is no agreement by March 2019 without any transitional agreement, then UK airlines will be grounded – or at least not flying to the EU – but that's not going to happen", he says.

Of course, O'Leary thinks it could well happen, but Torbol sees the consequences as so extreme that he refuses to accept them. With no factual basis for his assertion, he claims aircraft simply will not be grounded, not least because, if it comes to the crunch, countries such as Spain will break ranks and do a separate deal with the UK.

Now here it gets very interesting because the whole of the "open skies" legislation is based on the 2002 ECJ judgement which, amongst other things, declared that the power to make international agreements in the field of air transport was an exclusive Community (now Union) competence.

Therefore, in suggesting that if the UK fails to settle an access agreement with the EU, countries such as Spain will make separate deals, Mr Torbol the lawyer is pushing the idea that an EU Member State will breach EU law in order to resolve the problem.

We could possibly see a scenario where this might happen, when the Commission would then be required to launch infringement action. But to have a lawyer blandly offering an egregious breach of Union law as the solution to a problem is utterly bizarre.

Further, because such agreements are a Union competence, the probability is that the UK will be caught in the same trap that is affecting its ability to conclude trade deals with other countries. As the Commission has been quick to point out, these deals cannot be finalised until after Brexit.

By this means, the UK which currently relies on EU agreements to give it access to the airspace of third countries, and landing rights, will have to wait until it has left the EU before signing up new agreements.

On this basis, not only do we have the very difficult technical and legal problem of negotiating reciprocal access with EU (and Efta) countries, we also have to repeat the process with about 150 other countries, to put our airlines back on the footing that they currently enjoy.

Mr O'Leary's scenario, therefore, is the default value and only by exceptional skill and negotiating prowess, with the EU and other nations prepared to make considerable concessions to the UK without demanding anything in return, will our airlines be able to fly abroad after Brexit, without interruption.

Then to state this is not "negativity", and nor is it being pessimistic to suggest that interruption is the default value. On the other hand, to express "an underlying confidence that a solution will be found" with no evidence to support it, is indicative of a child-like naïvety. This is even more the case when we see astonishing complacency from the trade body.

Yet, not only in aviation, but in many other fields, do we see this simplistic, unwarranted confidence that everything will be alright on the night. I've actually had it put to me that I have no business being so "negative", for no other reason than our Government knows what it is doing and that I cannot possibly know of its plans.

The cynical rejoinder, to the poem which had the boy standing on the burning deck whence all but he had fled, is that he was the only one who didn't know what was going on. Yet, while his continued presence was celebrated a heroism, this blind faith in the competence and good faith of government can only be considered an advanced form of stupidity.

That we have come to a pass where grown men sternly enjoin me to trust our government, on the sole premise that it must know what it is doing, makes me worry for the future of our country.






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