Richard North, 25/09/2018  
 


Having flagged up the IEA/Singham paper yesterday, I am more or less committed to writing a review of it, even if it is a dreadful piece of work that is hardly worth the effort – and there are the latest "technical notices" to review, which will have to wait until tomorrow.

It has been billed by Jacob Rees-Mogg as the "most exciting contribution" to the Brexit debate in months yet, only a few hours after publication, Singham's "plan" had been trashed on Twitter and then ripped apart by John Crace with such verve that it should not survive. However, it still gets a better press from The Times than it deserves, which makes it all the more imperative that it is given a timely burial.

In fact, Crace gets it absolutely right. Under the headline, "Hard Brexiters' new plan gets A+ for idiocy", he derides the country's "leading trade lawyer", for "failing to grasp the basics of international trade". And having failed so spectacularly, Singham goes to prove "he really was as stupid as he sounded", suggesting that post-Brexit, "the UK might do some individual trade deals with separate EU countries".

This is part of the Singham fantasy where he advocates an "alternative approach" to the Brexit negotiations. He argues that the UK would seek to put "pressure internally on EU Member States", where there would likely be significant losses in the event of no EU trade deal. These, he says, include Bavaria (cars and dairy), Ireland (beef and dairy), Catalonia (cars and dairy), and Northern Italy (textiles and dairy).

This would amount to manipulating tariff rates, causing many EU producers to have different agendas, allowing divergence between Member States, which the UK could then exploit.

Clearly, we are being enjoined to adopt a variation on the strategy already adopted by the UK, where it has sought to split the Member States from the Commission and then practice its "divide and conquer" techniques to engineer splits in the unity of the members.

But, if we have learnt nothing else from the last two years, the one thing that should have sunk in is that the Member States are rock solid behind M. Barnier, and will not allow the UK to divide them.

Another illustration of the fantasy world in which the IEA and their favourite child, Shanker "Snake Oil" Singham, lives can then be seen in these immortal lines in his report, which address bilateral deals with countries where an EU FTA should be rolled over.

"Negotiations", Singham writes, "should be accelerated to roll over existing agreements and agree a new FTA with EFTA. the (sic) Department for International Trade (“DIT”) should seek to conclude these negotiations provisionally, so they can come into effect on 30 March 2019 in case of no Withdrawal Agreement and no Transition Period".

The reason why this is fantasy is not at all difficult to determine, especially if we take our cue from the Vienna Convention on Succession of States in respect of Treaties , which sets out the customary or settled law on the matter of continuity of treaties.

The essential point made several times in the Convention is that the law would have the effect of requiring the consent of all parties to a treaty before the UK could participate in treaties in which it had previously enjoyed participation by virtue of its membership of the EU.

Since in all the cases where the UK wants to roll over bilateral deals with countries where there is an EU FTA, the EU would, perforce, be one of the parties from which consent would be needed.

There lies the rub. In the event of the UK leaving the EU without a Withdrawal Agreement – a "no deal" Brexit – it is highly unlikely that the EU will give its consent to the UK's continued participation in its external trade deals. With no consent, the treaties simply cannot be rolled over. The UK would have to start again, and negotiate new treaties from scratch.

Given how vital these deals are to the UK, in enabling it to maintain its post-Brexit global trade, it is therefore, essential that we keep on good terms with the EU. And that effectively precludes the UK leaving without a Withdrawal Agreement and Transitional Period. Thus, the core part of the IEA/Singham case collapses.

The actual name of the Singham extravaganza is "Plan A+ - Creating a prosperous post-Brexit UK" but I prefer to call it "Plan A for amoeba", my title representing the number of brain cells expended in producing it. Mostly, it is a tired amalgam of regurgitated Legatum ideas which include the wholly impracticable proposition that the UK can trade with the EU on the basis of "mutual recognition", this giving us the fabled status of "regulatory autonomy".

"The UK", Mr Singham says, "should put forward an open and constructive offer of mutual recognition with the EU. Autonomy would be followed by recognition by the UK of EU regulation, standards, and conformity assessment, meaning institutional competition for the UK, commercial competition from EU imports, and avoidance of unnecessary trade barriers on imports".

Here, one does not have to rehearse, once again, the reasons why the EU cannot and will not accept mutual recognition. Suffice to say that there is no prospect, whatsoever, of this forming the basis of any trading relationship with the UK.

But, if the idea itself is fantasy, Singham then lurches into madness. "If the EU refuses to recognise UK regulations on day one of Brexit", he writes, "the UK should be prepared to take action in the WTO under the GATT and the SPS and TBT Agreements".

Setting out what is involved here, we have a situation in Brexit whereby the UK acquired the status of a third country, whence the EU then applies the full corpus of regulation applicable to third countries – as indeed it must under the non-discrimination rules of the WTO.

Under WTO rules, every contracting party is permitted to frame its own standards and require imported goods to meet them, with the further requirement that conformity may be demonstrated, by means of border checks.

The EU customs code, with the revised version now being implemented, works within the framework of WTO rules and, despite multiple challenges over the decades, has proved WTO compliant. There are no obvious or straightforward grounds on which the UK could base any action.

Yet Shanker Singham, hailed by some as "one of the most brilliant trade experts of his generation" asserts that these established points, which have so far resisted global challenge, can be taken on by the UK, acting on its own.

This silly, dismal, venal little man is so far from the real world that it has become a modern mystery as to why anyone could take him seriously. What he proposes it utterly barking mad, with not the slightest possible chance of success.

Nevertheless, he has just enough brain cells to understand that "such claims can take years to resolve". To Singham, though, that is not the point. The UK, he says, "should use threats of trade litigation to help support its negotiating objectives, as is normal practice around the world".

So here we go: the UK is supposed to re-enter the Brexit negotiations with an "alternative approach" which involves demanding the impossible from the EU against the threat of invoking the WTO dispute procedure, launching cases which would have absolutely no chance of success.

And, despite the EU being fully in compliance with WTO rules, Singham then goes on to tell us that "the purpose of these actions is not because we expect them to cause an immediate change in EU behaviour", but "because this is one of the ways we can highlight that the EU is in fact an outlier in its behaviour".

With only just over six months left for negotiations, just precisely where could that stance take us, except to an ignominious "no deal" outcome? But that then leaves The Times complicit in the Singham madness. "The Brexiteers' alternative comes late in the game", it writes, "and is short on detail, but would be better than no deal at all".

Singham's efforts, courtesy of the increasingly sinister IEA, are nothing but a recipe for a "no deal" Brexit. His facile, nonsensical nostrums go beyond unrealistic into the territory of lunacy, so bad that even the BBC smells a rat. They are an insult to all right-thinking people who have put the effort into exploring what is needed to secure a workable exit plan.

And those who support him, or fail to point out the fatuity of his work, are almost as bad as the man himself. For some, such as Ambrose Evans-Pritchard in the Telegraph - who sees that plan as "a breath of fresh air" - it represents a final retreat into bovine stupidity.






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