Richard North, 24/11/2018  

When, as an analyst, I am confronted with a complex document such as the draft withdrawal agreement, the very last things needed are the opinions of others. Before I can deal with them, I must first establish what I personally think, in order to deliver a clean appreciation. Otherwise, even if unwittingly, there is a danger of merely reflecting a consensus view – which may or may not be correct.

This is where the media often goes wrong. Hunting as a pack, they tend to deliver a common narrative. And there is a powerful reason for this. When truth cannot be judged in absolute terms, the prevailing narrative can become the measure. And since there is a penalty in being wrong (even if restricted to reputational), the pressure is on to conform with the narrative.

As long as everybody is wrong there is safety in numbers. To get it right but to be on your own may bring little reward, but if being different is perceived as error, the penalties can be severe. So pervasive is this dynamic that it is often considered better to be wrong than to depart from the herd.

Thus, the driving forces in the media militate against good analysis. In the increasingly competitive world of academia, the same pressures are at work. And in politics, truth is never an issue. There is rarely any premium on quality analysis, especially when tribal loyalties require sticking to party lines.

This and, in respect of the media, other influences which have been well-charted elsewhere, often results in a low quality product being presented to the public. Even those who wish to be informed find it hard to get reliable information, while the establishment works overtime to denigrate independent sources, adding the further test of "prestige" to the perception of veracity.

On that basis, multiple, prestige sources can project highly inaccurate versions of events. Nevertheless, these still prevail against better-founded accounts from minority sources which differ from the prevailing narrative. Only the more independently-minded are prepared to trust their own judgement and stray from the herd.

That, of course, does not necessarily make the minority source right. There are perils in standing alone, as one may miss things that are relevant, which distort or weaken the analytical process. Therefore, the best compromise, when presented with complex tasks, is to prepare a basic evaluation and then test it against what other people are saying.

Interestingly, when I came to look at other offerings on the recently published Political Declaration, the second of the two documents in the Brexit negotiation series, I was struck by the paucity of material and the thinness of that which was produced. Perversely, much more effort seems to have gone into the longer and more complex draft withdrawal agreement.

Predictably, with its bloated online budget, one of the more comprehensive reviews comes from the BBC, via its "reality check" department, written by Chris Morris. Take a ride through Google News and you will find that most of the other media sites are devoting their resources to following the soap opera. Even the Guardian, which tends to make the effort with this sort of this thing, treats the declaration in such an insufferably trivial way that it is scarcely worth reading.

Interestingly, both it and the BBC make the same observation which, if not exactly a mistake, tends to show a less than acute appreciation of the importance of the document. It is, they say "not legally binding", a point made in such a way as to suggest that it is somehow of less value than – say – the draft withdrawal agreement.

To downplay the importance of political documents is a peccadillo of a growing claque of self-important lawyers who specialise in international law. They would have treaties and like documents relegated to mere legal instruments, to be defined by lawyers and interpreted by judges.

However, despite their attempts, treaty-making is an intensely political process and, in some respects, the "declaration" can be even more powerful than a mere treaty – for precisely the reason that it stems from the political arena.

After all, Nato – as a treaty – is a pretty slender affair. What has kept it together for so long is not the compulsion of the legal text and the stern directions of the courts, but because it is to the political advantage of the members. The moment it ceases to be of benefit, it will crumble away – no matter what the lawyers might say.

And in that context, of the recent documents – the withdrawal agreement and the political declaration – the latter may be the more important of the two. This may especially be the case if the parties are really serious about stitching together an agreement by the end of 2020 (or by 2022, if the transition period is extended to its maximum length).

The received wisdom (which I have been at pains to highlight) is that a treaty of this expected complexity should take at least ten years to conclude, so to bring it to fruition in less than three years will be nothing short of a miracle. Whether it can even be done is by no means certain, but the parties have made a political commitment to try. And that is not to be taken lightly.

The point here is that a huge amount rests on the timescale. If a suitable agreement is concluded in the time, and delivers frictionless trade across the border on the island of Ireland, the contentious and troublesome "backstop" never takes effect, and all the potential consequences – dire as they are – fade away to nothing.

A lot of commentators have been misled by Jeremy Corbyn's characterisation of the document as "26 pages of waffle", which it is very far from being. This is a highly focused document, packed with detail, making profound statements which have the potential to transform the post-Brexit political environment.

In this context, Chris Morris, in his analysis, cites Article 28, to which I did not refer in mine. This, in full (Morris only uses part), states as follows:
The Parties envisage that the extent of the United Kingdom's commitments on customs and regulatory cooperation, including with regard to alignment of rules, would be taken into account in the application of related checks and controls, considering this as a factor in reducing risk. This, combined with the use of all available facilitative arrangements as described above, can lead to a spectrum of different outcomes for administrative processes as well as checks and controls, and note in this context their wish to be as ambitious as possible, while respecting the integrity of their respective markets and legal orders.
Despite the dense language, the meaning of this is very clear. Taken with Article 25, which has the United Kingdom committing to "consider aligning with Union rules in relevant areas", Article 28 tells us that, the closer the UK is integrated into the EU's regulatory system, the less we will see of "checks and controls".

There is, as one might expect, no specific reference to the Single Market (there is only one mention of the EU's Single Market in the entire document), but one can read into this passage a form of association with the Single Market, resting on the UK adopting not only much of the acquis but also subscribing to the regulatory "ecosystem" through the medium of regulatory cooperation.

A cynic (not that we know any) might remark that Mrs May, having ruled out participation in the Single Market in her Lancaster House speech, has ruled it back in again with this political declaration.

One might then say that, should this actually be the case, Mrs May has squared the circle in that she is working towards restoring the frictionless trade we enjoyed while in the European Union, while dispensing with the obligation to allow free movement of persons.

As always, though, nothing ever is quite what it seems. Article 50 (ironically) notes that "the principle of free movement of persons between the Union and the United Kingdom will no longer apply". But this is not so much removed as replaced with "mobility arrangements", based on "non-discrimination between the Union's Member States and full reciprocity".

While these "arrangements", on the face of it, are not anything like as comprehensive as current rights, they do not exclude the possibility of allowing citizens of EU Member States acquiring rights to work and establish business in the UK, with attendant rights of residence. This much can be read into Article 59 which has enough "constructive ambiguity" to allow negotiators considerable latitude.

As I remarked yesterday, there is an opening here to conclude an agreement which has its parallels with the EEA Agreement, albeit on vastly inferior terms and without the flexibility of the institutional arrangements which Efta states enjoy, rendering us worse off than when we were fully in the EU.

That notwithstanding, should Mrs May completely abandon her "red line" of taking back control of making our own laws – as she appears to be doing - then we might just escape the full rigour of border controls of the type illustrated (above), oddly, showing the expanded inspection facility in Rotterdam.

Had the willingness to make these concessions been acknowledged right at the start, the opposition to the Efta/EEA option would have evaporated and we would be so much further forward. As it is, we seem to be poised on the verge of a vast pretence of acquiring regulatory autonomy when, in truth, nothing much will change.

At least, however, Mrs May has the comfort of knowing that none of the media analysts have noticed. Their incompetence is working to her advantage.

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