Richard North, 24/07/2017  

In most developed societies, academics command prestige and authority. As such, they wield great power. But with power comes responsibility. If they take part in public debates, with the authority of their institutions behind them, they have a duty to get it right.

On Saturday, however, we saw one of a series of videos from "leading academic commentators from the University of Cambridge", highlighting "the issues facing the UK as it seeks to negotiate a Brexit agreement". The speaker was Dr Lorand Bartels, a Reader in International Law and a Fellow of Trinity Hall at the University of Cambridge, where he teaches international law, WTO law and EU law.

What first caught my eye, after the video had been flagged up on Twitter, was his comment on Philip Hammond who, he said, had asserted that the UK "can be outside of the customs union but we can still have entirely frictionless trade". In response, this "leading academic" had said:
I find it difficult to understand exactly what he has in mind because the whole point of being in a customs union is to have completely frictionless trade. The customs union is essentially what you do in order to get rid of customs border posts.
One shares the frustration at not knowing precisely what Hammond has in mind but the rest is nonsense. The "whole point" of a customs union being to have "completely frictionless trade" is quite evidently false. And the suggestion that anyone sets up a customs union "in order to get rid of customs border posts" is utterly bizarre.

It is difficult to convey the scale of this error. But Lost Leonardo takes up the cudgels as well. He, like most of us, know full well that internal Community borders were not finally abolished until 1992. Their abolition came not with the customs union, which was completed in 1968, but with the advent of the Single Market.

The confusion, however, is quite common, which makes it all the more important that "leading academics" such as Bartels should get it right, and not perpetuate such basic mistakes. Insofar as they have a role, it is to correct prevailing myths. That certainly seems to be how they see their role – as arbiters who set themselves above the fray.

In their self-appointed roles, these same people, I have found, are extraordinarily sensitive to perceived and actual offence. Some verge on being prissy. Their most common response to a challenge is to complain that we are being "rude", their lament, "how dare you be rude". Compared with that, nothing else is of consequence. One mustn't be "rude" to these precious little people.

What so many of them fail to do, though, is see the whole (or even a larger part of the) picture. Maybe I have a starry-eyed view of the responsibilities of academia but, where they fail in their duty, I find it offensive - deeply so. It is a betrayal of everything they supposedly stand for.

Furthermore, it has practical consequences. We, from our lowly position struggle hard to get our facts right, investing a great deal of time and effort in researching and conveying the correct information. It then takes four minutes for Bartels, standing in front of a posh bookcase, to undermine our work and perpetuate a damaging myth, which then goes straight into the Express to sustain the Muppets. 

That makes our lives incredibly difficult. We can assert something, on the basis of good evidence, only to have people tell us: "Ah, but Dr So-And-So of Oxbridge University says this. Why should we take any notice of you?" This is especially the case with the legacy media. A journalist, presented with a conflict, will invariably go for the academic comfort blanket. Such is the power of prestige.

Past experience of trying to correct academics, though, has not been good. I've tried it every which way. I've been polite and deferential. I've sent these people tactful, carefully crafted corrections, with all the cross references necessary for good scholarship. I've offered to see them, at my own expense. Those who contact me (and quite a few do) are treated courteously and, if they ask for information or sources, I do my best to help. I really have gone the extra mile.

The response, though, is generally that my views are ignored. I've seen academics, with whom I've had discussion, go on to present clearly erroneous information, in circumstances where they must know it's wrong. But still they do it. The view of the herd, it seems, must always prevail.

This, in part, explains my current attitude. I'm 69 this year. I have a PhD and decades of experience with EU issues – and I've been blogging daily for nearly 14 years. I really do not need to be deferential to idiots who are too idle to get their facts right. And past experience has shown deference to be ineffective. About the only thing that works is to be aggressively direct.

In this case, it did work – to an extent. It got a response which then became a platform to debate these issues in front of a wider audience. That is the way these things work. Not for one moment did I expect to change Bartels's views, or get him to correct his errors.

There is a mindset prevailing in some corners of academia (and especially in what I call the "Brexit claque") that not only denies error, but the possibility of error. They don't even understand that the concept of personal error can apply to them. Their egos are so highly tuned that it doesn't occur to them that they can make mistakes. Within this paradigm, anyone disagreeing has to be wrong themselves. That is their only way of resolving the paradox.

My first direct response to Bartels on Twitter, where a prolonged exchange was to take place, was to ask "what is happening in academia", then asking:
Is this man on the same planet as the rest of us? Does he know nothing of the history of the European Union. Why does he think the EEC's Customs Union was completed in 1968 yet internal border posts were only formally abolished in 1992 with the advent of the Single Market?

Has he looked at the current border situation between Turkey and EU Member States – specifically the Kapikule Border Gate? Turkey and the EU have a customs union between them. Why are there still border posts?

Is this the situation we have come to, where learned academics from prestigious British Universities are spouting utter tripe, and advertising their tawdry wares on YouTube?

Is there no one in Bartels's faculty who has sufficient knowledge to understand that he is talking rubbish, and pull the YouTube video before it does any more damage to Cambridge University's reputation?
By North standards this is fairly mild, but it provoked Bartels to reply: "Don't be silly. Customs unions are defined in Art XXIV GATT. Of course you CAN still have checks. But the point is to abolish them", he wrote.

Now there are certain things you don't say to a 69-year-old man, and certainly not one with a PhD and an enormous amount of experience in EU issues. And that is, "Don't be silly". As I was to point out to one of Bartels's academic colleagues who used the same term, "Children are 'silly'. Adults may be foolish, stupid, even, but not silly".

That aside, we then have to deal with the fatuity of Bartels's response. First, in the typically patronising way that some academics adopt, he tells us where to find a definition of a customs union, as if it was relevant, and as if we did not know. But he then goes on to tell us that: "Of course you CAN still have checks. But the point is to abolish them".

Believe it or not, though, we know that border checks can continue in a customs union. That is precisely the point we have made. We can also accept that the EU (and the EEC before it) sought to abolish checks. But this does not address Bartels's error. The customs union does not get rid of border posts. It eliminates tariffs and quantitative restrictions between members. It also sets a common external tariffs, to prevent back door entry. But to abolish customs border posts, you need – as the EC/EU found - the Single Market. But nowhere does Bartels mention the Single Market. All, he tells us is:
Now customs border posts do two things. Firstly, they check to make sure that in a free trade area, and a customs union is just one type of evolved free trade area, that in that free trade area, the goods that cross the border actually come from the country that is party to the free trade area, the customs union. So, it's a little bit difficult to see how one can have no border controls on goods in a free trade agreement because otherwise there's nothing to stop products from country x coming in to the UK and then being transhipped on to the EU…

The second thing that customs posts can look for – this is not entirely necessary but it's frequent – is to make sure that the products coming in can actually be sold in the importing country. It usually goes by the name of standards. What's important about standards it – they come in various flavours – but the harder form, safety standards usually, says that if you don't meet the standard, the product's illegal. It just can't come in. It can't be sold. That's not a matter of quality. It's a matter of whether the product actually is legal or illegal. It might as well be heroin if it fails to meet the standard. That's another thing that customs posts do. Again, not always – there are ways around it in certain circumstances, but this is the sort of thing that again is the difference between a customs union and a free trade area.

Now the third thing to say is that if all of this breaks down and we don't remain in the customs union, which of course on the current political setup – however long that lasts – looks extremely likely, erm if we don't have a free trade agreement, which is well a possibility, and some might even say a probability given the short time-frame that there is for negotiating one even if one accepts that there is a continuation of EU law or some other very similar transitional arrangement, then what we have is WTO law.

And of course WTO law is not the end of the world. Most countries trade under WTO rules. It' s just that the costs are much higher in many respects and also there are whopping great tariffs on items which are of political sensitivity in particular and to some extent economic sensitivity so cars, ah spirits and also most other agricultural products. So there are certainly huge costs to being in the WTO alone.
However, according to Bartels, as the Twitter exchange continued, this apparently covered his first points. Later, he wrote: "When I said the point of a CU is to get rid of border checks I meant CUs are necessary, not sufficient for this. You misunderstood".

So, this "leading academic" did not make an error. When he wrote: "The customs union is essentially what you do in order to get rid of customs border posts", we should have known that he actually meant: in order to get rid of them, it is necessary to have a customs union, but not sufficient.

Yet, even despite that, the reality is that the Single Market, if it was extended to all products and services, could also allow the elimination of customs border posts. Things such as rules of origin could be dealt with administratively, without the need for border inspections.

In other words, the customs union is a red herring. Bartels may be a specialist in arcane aspects of international law, but he is here displaying an extremely limited grasp of the wider issues. And that is without taking into account his comments on the WTO.

Here, there is an underlying arrogance. I cannot imagine a pilot, no matter how expert and experienced, claiming to be qualified to fly every aircraft type on the register. In fact, the law would not allow it. In academic terms, the EU and related issues cover such a huge territory that no one person (or even group) could claim to be expert in it.

But this is the implied claim of these academics - expertise across the board, even on issues in which they have no experience or qualification. And, by the same measure, they deny to anyone outside their claque any expertise at all, treating us in the patronisingly dismissive way that they so often do.

Any errors are always ours. That is how it always is. Academics such as Bartels cannot make mistakes and if we say otherwise, we are being "rude". And that is one of the reasons why we are not making any progress.

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