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EU Referendum: Flexcit v.6

2016-06-16 04:14:24

A new version of Flexcit is published today (v.6), this latest update taking in the work on what we're calling the "Liechtenstein solution" (see p.128). Cumulative downloads now exceed 80,000 making this a highly sought-after publication.

This version, for the first time, reconciles the inherent conflict between continued participation in the Single Market and the need to restrict freedom of movement. In this version, we offer the possibility of the UK joining (or re-joining) the EEA via Efta and then either unilaterally invoking Article 112 or agreeing "sectoral adaptations" which will enable the UK to impose quantitative restrictions on immigration from EU Member States.

The Flexcit plan as a whole represents a "roadmap" to demonstrate that leaving the EU is both practicable and safe, thus reassuring voters that Brexit does not have to be a "leap in the dark". To that end, it is an illustration of what could be done. It does not pretend to be an instruction. There may be other way of achieving what is ultimately the responsibility of Parliament to ensure a safe, measured exit settlement.

We need to remind people, though, that the original plan was offered to Vote Leave, which did not take up the offer the campaign director Dominic Cummings arguing that an officially adopted exit plan would simply become a target for the opposition.

The fatuity of this argument is self-evident, not least when with only just over a week to go before the poll, Vote Leave has issued its own "roadmap" enabling the Government to "implement the policy voted for by the public".

With Flexcit already on the table and with far greater reach than can be achieved by Vote Leave in the time, it would be entirely reasonable to ask why it was necessary to reinvent the wheel. However, on reviewing this work, one has to go further as we have done so many times and distance ourselves from Vote Leave's production, declaring once again, "not in our name".

This "roadmap", with the ponderous title of: "A framework for taking back control and establishing a new UK-EU deal after 23 June" is in fact quite appalling. It's a mish-mash of unrealistic aspirations and proposals which if enacted would breach Treaty obligations and jeopardise exit negotiations with the European Union. 

The production as a whole might be something that third-formers cobbled together behind the bicycle shed during their lunch break so lacking is it in gravitas and intelligence. It is hard to believe that this came from the official "leave" campaign, or that there were any adults involved in its production.

So appalling is it that we felt that we cannot simply dismiss it, but must explain something of why this should be disowned by the wider "leave" campaign, irrespective of whether the far better and more comprehensive Flexcit plan is accepted as a substitute.

Starting at the beginning, we see Vote Leave offering three points: a negotiation strategy for the informal talks that will precede the formal negotiations leading to a new UK-EU treaty; immediate legislation in the current session of Parliament; and a framework for legislation and policy decisions between 2016 and 2020.

For this latter point, their centrepiece is the repeal by 2020 of the European Communities Act 1972 (ECA). They also argue that we can "start negotiating new trade deals to promote free trade before we have left the EU".

On the basis that even a stopped clock is right twice a day, the opening is quite sensible. Vote Leave tells us that there is no need to rush the process. The precise details and the exact timing of the final settlement will only be clear when the Prime Minister's new negotiating team engages and negotiations begin.

Certainly, that is the case but they quickly spoil the argument by asserting that the Government should invite figures from other parties, business, the law and civil society to join the negotiating team.

We could call this idea all sorts of things one could be "stupid", but we're open to offers. The team will need to comprise experienced diplomats, led by a senior politician, and officials for reasons that should not need to be stated. By all means, there can be an advisory panel, recruiting individuals from a wide range of bodies, but the actual negotiations must be conducted by professionals.

At a very much higher level of stupidity, though, is the next suggestion that "the ECA should, of course, be amended quickly but should not be repealed in full until the formal negotiations are complete and the new UK-EU Treaty is clear".

Principally, what Vote Leave have in mind a European Union Law (Emergency Provisions) Bill. This, they say, would "immediately end the rogue European Court of Justice's control over national security", thereby allowing the Government "to remove EU citizens whose presence is not conducive to the public good (including terrorists and serious criminals) ".

It would, they say, also end the growing use of the EU's Charter of Fundamental Rights to overrule UK law, and end payouts under EU law to big businesses. Supposedly, this would save between 7 billion and 43 billion for public services by 2021.

The effect of this measure, it appears, would be to authorise Parliament to repeal selected EU laws, taking effect before we have formally concluded exit negotiations. Why this qualifies for the higher level of stupidity is that, potentially, it will put the UK in breach of its treaty obligations, with EU law applying (at the very least) up until the point when the exit settlement takes force and we formally leave the EU.

In breach of the treaties, therefore, the UK will be sitting down with EU members states, expecting and even demanding that their negotiating partners conduct themselves in accordance with the treaty provisions, themselves obeying relevant EU laws. This, as they say, does not compute.

Other measures which Vote Leave propose include a special "Finance Bill", which would abolish the five percent rate of VAT on household energy bills. They also want a "National Health Service (Funding Target) Bill", which would require the NHS to be paid 100 million per week, over and above current plans. What happened to the 350 million, one might ask.

Then there would be an "Asylum and Immigration Control Bill" which would end the automatic right of all EU citizens to enter the UK, and enable the border Agency "to carry out proper security checks" on those entering the UK, refusing entry to known criminals. EU citizens would be subject to UK law rather than EU immigration legislation.

Rather than have immediate effect, though, these measures would only come into force by "the data of the next general election". By this time, one assumes, the negotiations will have been completed although the settlement will not necessarily be in force.

Parading these issues, therefore notwithstanding their practicality amounts to pre-empting the outcome of the negotiations. Tactically, this is not a good thing to do. Furthermore, Parliament should not be passing speculative legislation. It would be quite within its rights to refuse even to consider such Bills, demanding legal certainty before any resources are committed to the legislative process.

Quite when we would see the end of the negotiations, though, is uncertain. But, in Vote Leave's playbook, whether they would even start is uncertain. Continuing their bizarre stance, they are arguing that, "only after informal negotiations with both other EU members and the Commission that issues such as whether and how to use Article 50 will be clear".

They go on to say that it makes no sense to trigger Article 50 immediately after the 23 June vote and before extensive preliminary discussions which is fair enough. But they add: "It will be for the Government to decide when, if at all, Article 50 is triggered and the most appropriate means by which the UK leaves the EU".

Continuing this absurdity, they then inform us that: "Article 50 is not the sole lawful means of leaving the EU". Laughably, we are told that, "if this were the case, Greenland could not have left the EU in 1985, but it did". Are they really, really that thick that they don't know that Article 50 only came into force in 2009, with the Lisbon Treaty?

This, one must keep reminding oneself, is coming from the official "leave" campaign a schoolboy howler that makes one embarrassed even to be on the same side. Please, everybody, be aware they are nothing to do with us.

Not quite in the same league but still in the "stupid" pot is the assertion that, "under international law, it is also possible to leave the EU under article 54 of the 1969 Vienna Convention on the Law of Treaties".

One gets so tired and bored with these amateurs. There is endless literature on Article 50 and related issues with a general consensus that, in leaving, the UK will be exercising its right under the Vienna Convention. But this is not the point. What these Vote Leave Muppets haven't understood is that Article 50 defines the procedure by which the separation agreement is negotiated.

Unless the UK invokes Article 50, there will be no negotiations, and no settlement. The UK is out in the cold, and chaos descends. It is in the UK's interests to use the procedure. It has no option but to use the procedure. 

Why then this is even an issue, one can only speculate. It betrays a fundamental ignorance on the part of Vote Leave understandable only when one realises that its probable author, Dominic Cummings, thinks that the European Commission defines the Single Market as including Schengen and the Single Currency. They really are that ignorant.

And that ignorance is certainly well evident as Vote Leave goes on to assure us that: "it will be possible to negotiate a new settlement with the EU, including a UK-EU free trade deal, by the next general election in May 2020".

This, they confidently assert, is mainly because: there is already tariff-free trade between the UK and the EU; and there is already regulatory equivalence. Thus, in their dismally myopic view, "the main stumbling blocks to negotiating a trade agreement are absent".

Again, one has to say how tired and bored one gets with these amateurs. These are children in elementary school, about as close to real life as the two-times table is to quantum mechanics. The two facets, tariff parity and regulatory convergence, are of course, very far from being "the main stumbling blocks" to an agreement. They are, in popular terms, the "starter for ten". They are simply the preliminaries that get you to the negotiating table.

If you ask the EU what they expect of a trade deal, they will list four main requirements. These are: "dynamic adaptation" of the agreement to enable it automatically to adjust to the evolving acquis; structures and institutions in place that will ensure the homogeneous interpretation of the agreement; independent surveillance of compliance and judicial enforcement mechanisms; and dispute settlement procedures.

It is germane to observe at this point that just the last issue, dispute settlement, is instrumental in stalling both CETA and TTIP. That Vote Leave are not even factoring this and the other three issues into their game tells you just how far these people are from the real world.

Not content with parading their ignorance to this extent though, Vote Leave are insistent on adding another layer. With the confidence of the unknowing, oblivious to the problems around them, they assert that "we would immediately be able to start negotiating new trade deals with emerging economies and the world's biggest economies (the US, China and Japan, as well as Canada, Australia, South Korea, New Zealand, and so on)". These they actually say, "could enter into force immediately after the UK leaves the EU".

You can only treat this child-like naivety in the same way that you would treat a four-year-old who gravely informs you that cars are powered by elastic bands. There's actually no point in disagreeing with them. You pat them on the head and humour them, while the world goes about its business. I think there's 53 countries or so, that have agreements. So, on top of running complex and resource-intensive negotiations with the EU (and Efta), we have people to spare to rush around the world forging new trade deals?

Then, if possible, it gets worse. Since there is already regulatory equivalence, they say, "detailed negotiations about the mutual recognition of product standards will be not be necessary, since at present, regulations are identical".

"There are currently few non-tariff barriers", Vote Leave burbles, so "there will be no need to negotiate their abolition". Countries such as Australia have Mutual Recognition Agreements that deal with these matters, the say, with a link here. "The UK will quickly be able to strike a satisfactory deal on mutual recognition".

What the babies show no sign of understanding, though, is that we're not talking about mutual recognition of standards, per se. This is about recognition of conformity assessment systems - certification bodies, laboratories and testing systems, and the entire infrastructure that enables exporters to provide documentation proving that products conform with current EU standards.

Brexit fragments this entire system. EU regulations which set out the parameters and approve the various certification bodies will no longer apply to the UK. Without then tying in the current structure to a regulatory framework which itself is committed to "dynamic adaptation", the national system will not be able to provide the necessary assurances. Getting our systems approved is not a done deal.

This again is an example of the sheer amateurism of Vote Leave. They're not even past first base when it comes to understanding how the system works and what is needed to ensure continuity of trading.

Nonetheless, the Vote Leave kindergarten will have Parliament pass a "Free Trade Bill" which would require by the next election that the UK leaves the EU's "common commercial policy". That, supposedly, would restore the UK Government's power to control its own trade policy which, supposedly, would create jobs. Most likely, the only jobs created will be in job centres.

The thing is here that, from a zero knowledge base, you simply can't magic out of thin air a credible exit plan. That's why it took us two years to write the first full draft of Flexcit. Vote Leave have neither the competence nor the experience to do the job. And, in their tawdry production, it shows.

Ironically, though, their fellow travellers in the Telegraph, who tell us that "the roadmap for Brexit must be flexible" I wonder where they got that from are just as bad. They talk about needing to "act immediately" for example on the European Communities Act 1972 - accelerating the timetable "to restore supremacy of UK sovereignty". So they too would have us in going into negotiations in breach of our treaty obligations, without apparently realising the peril in so doing.

Truly, we are surrounded by children. But at least there is Flexcit for a backstop. We can see now why Vote Leave didn't want it. Undoubtedly, it had far too many big words. But even when we gave them the movie, it they still can't cope. Perhaps we should try a picture book.

That notwithstanding, we do have a plan. It's called Flexcit and it does the job needed providing the reassurance that leaving is a safe and practicable aspiration. Even, or especially, without Vote Leave, there is nothing to fear. All you have to do is mark the box at the bottom of the ballot paper. With one bound, we've Flexcited.