Brexit: one of us is lying

Tuesday 28 January 2020  

It is a measure of the power of prestige that prime minister Johnson can repeatedly deliver absolute tosh on the matter of regulatory checks on goods entering Northern Ireland from the rest of the UK.

In any sane world, the man would have been faced down, not least by the official opposition in parliament and by a series of stern editorials in the print media. But, when a brazen liar chooses to repeat a lie, with the status of prime minister behind him, he is still given a hearing.

However, even with our deferential media, the gloss is beginning to wear off as it begins to confront the reality – not least as delivered by Michel Barnier in a speech yesterday at Queen's University Belfast.

As an aside, one must take time out to admire the humour of the Northern Irish who, with an apparently straight face, named the venue chosen for the speech as the William J. Clinton Leadership Institute. Leadership, but not as we know it Jim.

For those who want to watch the speech (and haven't already), it is on You Tube where it is quite evident that the EU's chief negotiator – days before we leave the EU – is not prepared to beat about the bush.

"Brexit", he says, "unfortunately has consequences that we must manage. The UK has chosen to become a third country; to leave the Single Market and the Customs Union; to leave behind the EU's framework of common rules, common supervision and common Court of Justice".

Although it should hardly need saying at this point, Barnier nevertheless added the obvious: "It (the UK) has chosen to create two regulatory spaces", he says. "This makes frictionless trade impossible. It makes checks indispensable".

Speaking specifically (but not exclusively) about Northern Ireland, he tells us, "We will need sanitary and phyto-sanitary checks on food products and live animals. The EU must be able to assess risks on any product coming into its market and, if necessary, activate physical controls".

Continuing his statement, he reminds us with brutal frankness that "these checks must take place somewhere". And, he says, "as the whole point of the Protocol is to avoid a hard border and protect the all-island economy, it was clear that they could not take place at the land border between Ireland and Northern Ireland".

"The only real option", he concludes, "was to use Northern Ireland's other entry points. This is also where such checks are the easiest to implement. And controls will also take place in Dublin and other EU entry points".

Later, he is asked about Johnson's claims that there will be "unfettered access" to goods both way, and what would happen if the UK did not fully implementing the protocol.

Barnier, showing the nearest thing he ever has to agitation, stated that this "will have consequences". Many of these consequence have been under-estimated, he says, or not well-explained to the people. There will be no possibility for frictionless trade between the EU and the UK, he says. "There will never be any compromise on the Single Market – never, never, never", he adds.

This is about 41 minutes into the YouTube video, and it is these remarks which have been largely picked up by the media. Predictable, the Guardian is hot on the trail, reporting on the difference of view between the EU and Johnson.

"The text is very precise. I always tell the truth", says Barnier, leaving it for the audience to decide how to label Johnson's claims. When journalists persisted in asking how he felt about Johnson's repeated claims there would be no checks, he replied: "I know what is written in this text". The sub-text, of course, was "one of us in lying … and it ain't me!"

It should not be assumed, however, that the media are taking the issue that seriously. At the time of writing, both the Guardian and the Telegraph - along with The Times - were carrying on their websites as their lead item, the story about Prince Andrew giving "zero cooperation" to Epstein inquiry. The obsession with the royal soap opera continues to exert its baleful influence.

And, so far, the media collective has given far more attention to the commemorative 50p coin than it has to the words of Michel Barnier. And I doubt very much whether that will change (no pun intended). Never let it be said that the British media doesn't do trivia.

Even on the BBC website, one struggles to hunt down the story as it is well-hidden under the category "local news" in the Northern Ireland politics section.

At least we are then allowed to know that "New checks on goods entering NI [are] 'indispensible'", according to Barnier. And yes, "indispensable" is misspelt. But then, this is the modern BBC for you, the best website that £100 million (of our money) can buy.

According to this source, though, the prime minister has only "suggested" that GB-NI trade would remain "unfettered", than having Barnier making "comments" that the UK's choices make frictionless trade "impossible". Weak as ditchwater would be a fair assessment.

With no license fee review to worry about, though, ITV was able to take a more robust line, headlining its website piece: "Frictionless trade impossible after Brexit", attributing the quote to Barnier.

There again, however, this is offered as a straight quote. Yet what Barnier is doing is flatly contradicting Johnson. This is how the media questioning was framed, inviting a biff-bam response. Yet having specifically invited Barnier's contradiction, none are prepared to call Johnson out for the liar he is, except (by inference) the Guardian, which headlines: "Barnier refutes Johnson's claims over Irish Sea trade checks".

Mind you, it isn't only the BBC which is displaying its illiteracy. The supposed "paper of record", The Times, has Bruno Waterfield writing the lead story under the headline, "EU demands its judges keep control after Brexit", with the standfirst reading: "Strasbourg would rule on future UK trade rights".

This is a reference to a document which is pompously "seen by The Times" claiming that the EU is to insist that the "European Court of Justice" will be able to enforce the terms of a trade, fishing and security deal.

Even though Waterfield is one of those journalists who insists on calling the European Council a "summit", I doubt that even he would confuse the ECJ's location in Luxembourg with that of the European Court of Human Rights in Strasbourg (which is not even run by the EU).

Unfortunately for The Times, this error is on the front page of their print edition, so they cannot escape with a silent edit, pretending it never happened. As for the Barnier speech, we are told that Barnier said that the EU "would make unprecedented demands during negotiations because of European fears that Britain would abandon 'standards'".

Barnier actually said no such thing, or anything like it. The nearest thing to it is Barnier saying that, "the UK cannot expect high-quality access to our Single Market if it insists on competing on State aid, social or environmental standards".

So, another day passes as we approach the "high noon" of Brexit. And as Barnier complains that the consequences of Brexit are "not well-explained to the people", the media collective goes out of its way to prove him right. Fed on a diet of lies by our prime minister, and unwilling to call him out, its craven silence amply demonstrates that it is no longer fit for purpose.

And yet, we have Henry Faure Walker, chairman of the industry lobby group News Media Association, responding to the government's refusal to fund "public interest journalism", saying: "Without swift and significant market intervention now, the flow of independent, high-quality local news and information which is essential for the functioning of our democracy can no longer be guaranteed".

These people really are living on another planet.

Richard North 28/01/2020 link

Brexit: the consequences of haste

Monday 27 January 2020  

Keeping up with the details of Brexit is difficult and the issues (some of them) are complex, so it is easy to make mistakes. One should not, therefore, mock the afflicted (too much), especially the Financial Times which must hold the world record for ponderous statements on the European Union.

However, it is difficult to suppress a smile at the latest FT offering which bears the headline: "EU asks partners to treat UK as bloc member after Brexit".

According to its Brussels hack, Jim Brunsden, the EU is about to contact its partners around the world this week "with an unusual request", paraphrased as: "Could you temporarily pretend that Britain is still in the bloc, even though it will have left?"

Relying as they so often do on a verbal briefing without doing the background homework, Brunsden earnestly tells us that EU officials have "told the Financial Times (journo-speak for a phone call) that the European Commission" would send out the diplomatic note to the more than 160 countries with which it has international agreements, "as it seeks to help the UK navigate the unique circumstances of its post-Brexit transition period".

This, apparently, is via the diplomatic device known as a note verbal which, we are informed, is published on the EU's website. This, supposedly "notifies governments around the world that Brussels' intention is that 'the United Kingdom is treated as a Member State of the Union and of Euratom for the purposes of these international agreements' during the transition".

And indeed the note is on the Europa website – not that the FT provides a link, but the intriguing thing is the date. The text was actually published on 5 December 2018, together with the template for letters to be sent with it, to all the relevant third countries.

The date of this initiative anticipated the UK's original departure from the EU, scheduled for 29 March 2019, so it would be more accurate to say that the EU is finally activating its plans that have been dormant for just over a year.

In so doing, the commission is giving the UK a respite for eleven months before 977 bilateral agreements the EU has made with the rest of the world cease to apply to the UK. That will then leave us with the onerous task of reforging those agreements which still have relevance (possibly around 600).

Says Jim Brunsden, "the move by Brussels underlines how Britain and the EU will be in uncharted territory after Brexit day, navigating an 11-month period in which the UK will still be covered by EU law, inside the bloc's single market and customs union, but outside the EU".

Putting a pessimistic spin on the arrangement, Brunsden wants us to take home the view that this puts us in an "ambiguous" situation. Under the terms of its Brexit deal, he says, the UK will still need to comply with all the obligations placed on the EU by such agreements until the transition period ends.

"But", he adds, "whether it continues to get the benefits of the agreements is ultimately up to the partner countries". And indeed that is the case, but at least he has the grace to admit that, "EU and UK officials say they are not expecting problems".

Nevertheless, he covers his back by adding that "there is always the possibility that the situation is tested in court", although one EU official has told him that the 11-month window was short enough that there was little incentive for other countries to make difficulties.

In truth, this is the least of our concerns. Way back in November 2015, I wrote a detailed piece pointing out that the UK could rely on the principles set out in the Vienna Convention on Succession of States in respect of Treaties.

Although the UK has not acceded to this Convention, the principles have been largely accepted as customary law, whereby if parties to treaties separate but maintain the conditions to which they were originally bound, then they can rely on the principle of "continuity of treaties", where the treaties continue to apply even after the separation.

This was tested after the "velvet divorce" between the Czech Republic and Slovakia, which pre-dated the Convention. The problems created were not dissimilar to that which arises with the UK's transition period. But, in that case, it was resolved when on 19 January 1993 the two republics were admitted to the United Nations as new and separate states. In respect of international treaties, they simply agreed to honour the treaty obligations of Czechoslovakia.

A much more intractable problem, however, arises when the transition period ends, and especially if it comes to an abrupt halt at the end of December this year.

The point here is that, during the transition period, we will have stayed aligned with the EU and, therefore, the principle of continuity is tenable. Had we rejoined Efta and stayed with the EEA, we could also have argued for continuity. But, with the general refusal of the UK government to commit to regulatory alignment with the EU, this principle is unlikely to apply after 31 December 2020.

Towards the end of his report, Brunsden does refer to this problem, reminding us that Michel Barnier recently warned that the bigger challenge for the UK will be to use the transition to negotiate its own deals with countries around the world.

It is the FT that has Brussels estimating that there are about 600 agreements that Britain will want to replace, noting that the EU has 49 accords with Switzerland alone, while there are 44 with the US and 38 with Norway. "Mechanically, legally speaking, they leave all these", Barnier says. "They will have to rebuild everything".

This, I reported at the time, but I had also referred to the problem at the beginning of this month, noting that very little progress had been made on reforging the severed links and, for an unknown number of them, matters would need to be settled with the EU before any progress could be made.

Previously, I'd given this problem a good airing in February last year, whence I also referred to a report produced for the European Parliament in March 2018. Even then it was warning that the continued participation in EU deals was "not automatic but subject to negotiation". With some prescience, the report stated that the UK's relationships with third countries could continue as normal during the transition period.

It did state, though, that "it would be preferable for the EU and the UK to speak to the third countries concerned, and to reach an agreement (which could be done by simple exchange of letters) that in the course of the transition all parties continue to apply the trade agreements as before".

This problem, therefore, has been a long time coming, and no one can say that there haven't been any warnings. From two years ago, right up to press, the EU has been making it clear that the bottom drops out of the treaty game once the transition period ends.

It stretches belief to suggest that UK negotiators will be able to seek replacements for some 600-plus deals within the next eleven months. It would be hard in the period even just to define the scale of the problem and set out a work programme to deal with it.

Prime minister Johnson, may therefore, think he has a handle on things, and we cannot expect any attenuation of his crowing about getting Brexit "done" (given that he even cares, one way or the other). Even now, he is burbling about Britain becoming a "global, trail-blazing country after Brexit".

But it looks more and more as if the only thing that will be "done" is the creation of a shambles in place of our current trade relations with the rest of the world.

Richard North 27/01/2020 link

Brexit: a manifesto for peace

Sunday 26 January 2020  

It is fair to say that the "remain" campaign in the 2016 referendum was abysmal, even if it was only marginally worse than the official "leave" campaign. Noticeably, the remainers chose to home in on the negative aspects of leaving – the so-called "project fear" strategy. No serious attempt was made to talk up the benefits of European Union membership.

After the referendum, it is also fair to say that the main emphasis of the "remainers" was to negate the result, seeking amongst other things a second (actually third) referendum, in the hope that this would restore the status quo. As to how we should manage the Brexit process, there was very little, if any, coherent input from that quarter.

Whatever else has been the result of the 2019 general election, the net effect has been to crush the "remainers" as an organised protest. Calls for another referendum have all but disappeared and, although a disconsolate rump is embracing a "rejoin" movement, it is unlikely that this will gain any political traction for the foreseeable future.

All of this has led to a somewhat morose Nick Cohen to write in the Observer that, with Boris Johnson in control, "the danger is that liberals will give up the fight".

From where he gets this "liberal" schtick, I really don't know, but I have difficulty with the idea that support for the EU is a liberal (with a small "l") value. Nevertheless, one takes the poor man's point – he is lamenting not only the demise of the anti-Brexiteers but their descent into "torpor".

"The listless acceptance", he writes, "extends to those who believe that leaving the European Union is an act of monumental folly". What he concedes as "Brexit's inevitability", plus the possibility that we are in for another decade of right wing rule, is leading opponents of the status quo to retreat into private life, as the defeated so often do.

I must say that I have found the idea of chucking this blog to concentrate on my passion for building scale models is increasingly attractive, and have already retreated from Twitter where the cacophony of aimless noise and the self-referential love-fests serve no useful purpose.

But, taking heed of the warning that, if you don't take an interest in politics, it will take an interest in you, I am prepared to continue to invest the six hours and more spent daily researching and writing posts – and the many more hours monitoring and moderating the comments.

Where Cohen does himself less than a favour though is that, while he is full of dire predictions of the woes that are about to befall us, he has little to offer by way of any remedies.

Thus, he tells us, "the hard break the government is proposing as the only way to leave the EU without following EU law will be a direct attack on the pharmaceutical, chemical, aerospace, food processing, farming, fishing and car industries".

As if we didn't know already, he goes on to warn that "businesses that rely on the frictionless movement of goods will suffer", almost revelling in the prospect of our decline and fall as he regurgitates what is fast becoming the received wisdom of the dispossessed. Amongst the evils we face, Cohen says:
The absence of regulatory checks and arguments about the source of components and applicable tax rates is essential for their health, just as the absence of border checks on perishable food is essential for fresh food and fish exports. Hundreds of thousands of jobs and everyone's living standards are at stake. The Food and Drink Federation said last week that the Johnson administration's policies sounded like the "death knell" for frictionless trade with the EU and were likely to cause food prices to rise.
For all that, the great sage also spends next to no time analysing the causes of our demise. Simply, he lists four things, without commenting on any: the Conservatives won a handsome majority; Brexit bored the public rigid; the opposition was hopeless; journalists weren't doing their job.

One might, however, venture a view that the reason the Conservatives won a "handsome majority" is because the opposition was "hopeless". I have even gone so far as to suggest that the dynamics of the general election were such that that Tories didn't win it – Labour lost it.

As to the public being "bored" with Brexit, I have always held the view – and hold it to this day – that the craft of the journalist is to transform the dull, and make it interesting, to make the complex simple without losing any of the essence.

This was something at which the late Christopher Booker was the supreme master, and had he still been alive, I would most likely at this time be summarising one of his pieces to publish on this blog. Not for him was the simple formula of dismissing EU legislation as "almost incomprehensible to an untrained eye". He would get stuck in to the likes of the electro-magnetic compatibility directive, of the intricacies of fisheries regulations, and tell us precisely why they were wrong.

It is no coincidence that he and I, having spent most of our working lives opposing the EU, should at the very end support remaining in the EU's Single Market which had previously been the target of much of our criticism. Ours was simply the caution of avoiding sudden change and taking careful, measured steps in order safely to emerge into our EU-free world.

But, if that was to happen, we needed a plan – and that was something that neither this nor earlier governments, the leavers – nor the post-referendum remainers – have ever troubled to formulate. In fact, so much energy has been spent on poisoning the well that it is difficult now to debate intelligently the most obvious plan of all – the Efta/EEA option.

One would have thought by now, though, that the likes of Cohen – who are so sure that Johnson's "hard break" Brexit will be a disaster – would see in this an opportunity to come up with an alternative. And if we take as a given that the possibility of taking up the Efta/EEA option (or something very much like it) will never completely close, Cohen has an obvious place to turn.

Interestingly, nearly nine years ago, anticipating the coming referendum, I was writing of our experiences as a nation in the Second World War.

In 1940, I wrote, political issues – such as European political integration – were being widely discussed, all in the more general context of defining British "war aims". It was not simply enough to fight and win, we had to have a reason for fighting, or so the argument went.

This, I went on to record, was discussed in a parliamentary debate on 15 October 1940. As the wreckage of London lay around them, MPs gathered to find out whether the Government was prepared to make a definitive statement on war aims. But Churchill refused, point blank. He was guardian of the status quo, suppressing any debate on the issue.

In what is an insufficiently aired facet of our wartime politics, Churchill's Information Minister Duff Cooper, very much supported the idea, and had been speaking secretly for it in Cabinet. 

He expressed his support as far as he could during the debate but the crucial event on the floor of the House was the intervention by Richard Stokes, Labour MP for Ipswich, a Military Cross winner in the First World War (and bar), a stern critic of British tank design and soon to become an arch critic of the area bombing policy.

Cooper, said Stokes, had enunciated what we were fighting against, but not what we were fighting for. "[It] is no use fighting for a negative object. You must have a positive one, and the sooner that [is] stated the better".

Nearly eighty years later, all we have from Mr Cohen is his view of the prime minister's announcement that: "we can put the rancour and division of the past three years behind us and focus on delivering a bright, exciting future" should be met "with derisive laughter".

That may be the case, but unless or until the opposition which Cohen represents is able, in the manner of Richard Stokes, to come up with a positive way of dealing with Brexit, it will remain in the wilderness. A contemporary cartoon (pictured) caught the mood of the moment way back in 1940. Where now is our "great peace manifesto"?

Richard North 26/01/2020 link

Brexit: the morning after

Saturday 25 January 2020  

It's a bit like the morning after the night before. No sooner does the buffoon Johnson scribble his signature on the Withdrawal Agreement, then the Commission publishes a 51-page explainer, setting out how it should work in practice.

I don't suppose it would have helped that much if these details had been rehearsed during the general election campaign. With a terminally useless opposition, there was not much point in telling the nation that the Agreement was crock, when there was nothing else on the table worth voting for.

To that extent, it was a Hobson's choice election, but now comes the dawning realisation that we are  lumbered with an almost impossible system for Northern Ireland, despite the consistent denials from our mendacious prime minister, who is still trying to assert that it is business as usual.

For those of us who read the Northern Ireland Protocol at the time, it was self-evident that the system was going to be a bureaucratic nightmare, but on top of that we now have to suffer the conceit of the likes of the Guardian which, in the self-important way of the legacy media, now "reveals" some of the complications written into the EU's system.

Ironically, we find the newspaper referring to "a complex 557-page document, which is almost incomprehensible to an untrained eye", which turns out to be the Commission Delegated Regulation (EU) 2015/2446 of 8 July 2015.

But if the paper recoils with fright at this single regulation, then we should perhaps draw a veil over the reality – that this is but one of a suite of documents, which starts with Regulation (EU) No 952/2013, the original 101-page version of the Union Customs Code (UCC), which has since been amended several times, including by Regulation (EU) 2019/474. In its consolidated version, it has now become a 162-page document.

The UCC itself relies for its detailed rules on Commission Implementing Regulation (EU) 2015/2447, which runs to a mere 336 pages. Then, of course, we have Commission Delegated Regulation ((EU) 2016/141, another slender volume running only to 320 pages, which deals with certain transitional provisions pertaining to the creation of "a fully electronic customs environment".

A list of what is known as the UCC legal package - for those who are interested - can be seen here. On top of that, there is a whole raft of Guidance documents, the extent of which would probably leave War and Peace standing. These include such delights as the Guidance on binding origin information, the General Guidance on Customs Decisions and the best-selling Guidance on non-preferential rules of origin.

It is probably fair to say that no single mortal human being has ever read the entire package of legislative and guidance documents – which only represent a fraction of the total output. Even undertaking such a task is likely to impossible as, by the time the full range of documents had been read, most of them would have been amended anyway.

The Guardian is not that far wrong when it resorts to describing just one document a "almost incomprehensible to an untrained eye", but when you add the totality of the documents in the system, you are confronting a specialist area that a lifetime of study would hardly scratch. No wonder I cast a jaundiced eye over those who claim to be "experts" in this field. A certain familiarity with some aspects of the system is about the best one could hope for.

However, unlike the Guardian, to which the UCC seems to have come as something of a revelation, this blog has been writing about the issue for some considerable time, most notably on 22 December 2016 when I wrote a piece headed "confusion on customs". And there, I did actually refer to the UCC as a "highly complex and detailed code", pointing out the difficulty the UK would have in applying it.

Well, it seems the genius Johnson has lumbered Northern Ireland with just that, with some of the difficulties foreseen in my piece of 17 May 2018, with another of more recent origin drawing attention to the then prevailing (and continuing) confusion and the shallow grasp the legacy media had (and has) of the technicalities of Brexit.

Had all these issues been thoroughly addressed in the legacy media at the time – and even discussed in the House of Commons – we would not now have a national newspaper "revealing" something that should already be well known. That we are facing untold complications should hardly be news – not at this late stage in the game.

Although there was never any chance of it being any different, this is probably the worst time imaginable to implement Brexit, as the EU is still in the process of undertaking the most comprehensive review of its customs system in its history, a process which is aimed at introducing a high degree of automation and electronic processing.

For the UK, even dealing with our transition from an EU member to third country status is difficult enough, but when that coincides with a major system upgrade, with an entirely new raft of legislation and procedures, this is something that should have been avoided.

For this reason alone, we would have been better off staying within the framework of the EEA – which would have been problematical enough – but to drop out of the system entirely just when it is undergoing such fundamental change really is asking for trouble.

In fact, Johnson has led us by the nose into an administrative cul-de-sac, with the media asleep on the job, whence they are only now waking up to the implications.

Needless to say, such "boring" detail still seems quite beyond the ability of our gifted MPs to understand, which means that business can expect little relief as it tries to grapple with what are largely impossible demands. And, with the Chancellor all over the place as regards regulatory alignment, and Johnson still in denial, there is little prospect of government delivering coherent messages.

Unlike the usual morning after, therefore, when the hangover eventually dissipates, this one is set to get worse.

Richard North 25/01/2020 link

Brexit: a state of mind

Friday 24 January 2020  

So, the Withdrawal Bill has been given the Royal Assent, after the Lords decided not to challenge the removal of their amendments by the Commons.

The Bill now becomes part of the law of the land. And thus does it pave the way to the UK's withdrawal from the European Union, ending a membership which started on 1 January 1973 with our formal accession to the EEC.

This is only the first stage of a multi-stage process and we have a long way to go, but that hasn't stopped the buffoon Johnson declaring that the UK has "crossed the Brexit finish line". And, with the job not even half-finished, he tells us that the UK can "move forwards as one" and put "years of rancour and division behind it".

All that is now needed procedurally is for the European Parliament to give its consent, with a debate in Brussels planned for 29 January. The vote will probably be the same day, with no sign that any trouble is expected, especially as the Constitutional Affairs Committee has agreed to recommend that the Parliament should cast an affirmative vote. Even Brexit Party MEPs are indicating that they will vote in favour.

With that, the General Affairs Council of the European Union must declare the Withdrawal Agreement "concluded" by a qualified majority vote, a process expected on 30 January. Then it's game over. We wait until 11pm on the 31st January (midnight Brussels time) and we're out.

There most certainly will be a number of celebrations in the UK, but officials in Brussels are anxious not to make a show of things. The UK flag will be lowered some time after midnight and stored in a locker with all the other third country flags.

No doubt, a few snappers will be hired to watch out for the moment, and we can expect photos to be winging their way around the world shortly thereafter, symbolising a deed which many thought could never happen.

With that, the real work starts – or will start once the European Union has got its negotiating mandate set out and approved by the European Council. There isn't a formal meeting of the Council until 26 March but it is expected that arrangements will be made in time for talks to start by the end of February or early March.

Where we go from there is anyone's guess. Given the current noise level, the absence of hard information from HMG and the insanely short timescale (if Johnson sticks to his word), the only thing we can expect is an extremely limited treaty (or, possibly, none at all). But, as to the exact composition, there are too many unknowns to be able to hazard a prediction.

In the interim, the transition period kicks in, with the UK remaining a de facto member of the European Union, still obeying all its laws and enjoying all the privileges of membership, bar that of representation in the European Commission, the Council of the European Union and the European Council.

Some 73 UK MEPs (and their more numerous staffs) will be made redundant, and an unknown number of officials may be redeployed from Brussels to other duties – although the number may actually increase over the short-term as negotiations progress.

As to the end of "rancour and division", that is nothing but a vacuous pipe dream from one of the most divisive politicians since Thatcher (and even beyond). And, as Suzanne Moore writes in the Guardian, Brexit won't be "done".

Sadly – but entirely in character – Moore goes on to write that Brexit "will be an eternity, and deathly dull". There, she probably speaks for most of the legacy media. The collective has decided that Brexit is "deathly dull", and that is the way it will be treated.

It's worth observing here that in the negotiations for the UK's accession to the EEC, officials were worried about keeping the negotiating details away from the prying eyes of the media. In the event, though, they need not have been concerned. As the talks entered into detail, the media lost interest and it was a job getting journalists (or their editors) to report anything at all.

What goes round comes round. The media is certainly no better – and most likely considerably worse – in understanding and reporting the issues, and if the chatterati have indeed already decided that the forthcoming negotiations are to be "deathly dull", then we can't expect much energy to be devoted to following the proceedings.

One thing that will change, though, is the rhetoric. As we will have formally left the EU, the terms "leaver" and "remainer" will become obsolete. There may – and almost certainly will – be a new caucus of "rejoiners", but theirs will be a forlorn endeavour as the momentum is towards widening the gap with "Europe".

What may be interesting to watch is whether there is any serious development of a "hidden Brexit", where a domestic reform agenda takes root, capitalising on the disturbance brought about by our leaving the EU.

To take a cue from Pete, when the UK voted to leave we started a political revolution with so many moving parts it's impossible to predict where it will take us.

His thesis is that Brexit, ultimately, is rooted in an extreme arrogance of an establishment that doesn't act with consent, refuses to listen and in all instances believes that it knows better than the rest of us, believing that they have a God given right to impose anything they like on us.

And if that is the case, then the process of Brexit must move way beyond dealing with our external relations with the EU and the rest of the world. The agenda, though, does not even begin to address "rancour and division", which has the makings of being a permanent part of our society. Says Pete:
Remainers may be horrified by Brexit but they can't say they didn't have it coming. They've done everything possible to insult, antagonise and condescend to leavers. They hate Brexit precisely because it does give ordinary people a voice and for the first time in half a century they can't have it all their own way. This is the humbling they need and deserve.
Thus, he says, we need a political and cultural revolution to spark the ideas that will define the next era. It is already apparent that this wishy-washy Tory government has nothing to say for itself. It exists, he says, only because the alternative was unimaginably awful. By the time this lot are finished, though, the country will at least agree on one thing. Politics as we know it just doesn't work and that place on the Thames has outlived its usefulness.

Should that revolution come to pass, then Brexit will have been worth the pain. Since we joined the EEC, the elements of democracy in this country – always a fragile institution – have increasingly been put on hold. Clearly, the anti-democratic ethos of the EU must be contagious, as nearly half a century of community and union membership has turned us into a zombie state.

The trouble is that the practice of democracy does not come naturally. It requires learned behaviour and a commitment to processes, many of which are inherently inefficient but, as Churchill once said, are our "least worst" option.

Nevertheless, it is intriguing to see the response to calls for more democracy – and especially direct democracy (the only real kind) - when commentators shriek about "mob rule" at the thought of people being able to shape their own destinies and make their own decisions.

Brexit, therefore – more than anything – is going to require an attitudinal change, where we cast off the intellectual bonds that hold us subservient to our masters, whether they be in Brussels or Whitehall. That makes Brexit a state of mind, and once we get used to that, anything can happen.

Richard North 24/01/2020 link

Brexit: silence may be preferable

Thursday 23 January 2020  

Columnist Martin Kettle, in a headline in the Guardian has the nerve to tell us that Brexit is not "done", so "we" have to start talking about it again.

Of course, we haven't stopped talking about Brexit and, with some constancy, have been at pains to point out that the claim of Brexit being "done" is something akin to fraud.

But then, Kettle isn't talking about us. The "we" to which he refers is the legacy media, an institution which has just spent the best part of a month bloviating about the royal soap opera, to the exclusion of just about everything else, including Brexit.

And that rather adds to the bulk of evidence demonstrating that the media really does live in a world of its own. Nothing exists outside their foetid bubble and because they have gone silent on something, that automatically translates into the generalisation that "nobody" is talking about that particular issue.

But, before we embrace the idea of the media pouring out a torrent of news about the most important domestic political issue this century, we might also call for a significant upgrade in the quality of reporting and analysis. As much of what we actually get is hardly worth reading, more volume isn't necessarily to be welcomed.

A good example of this is one of the most recent propaganda offerings from the fanboy gazette which parades the "shock-horror" headline: "EU preparing to give UK worse trade deal terms than Canada or Japan", augmented yesterday by one of those fatuous "explainers", which serves to illustrate how little its author actually knows.

In the original piece, we have Peter Foster using that irritating formula, telling us that the Telegraph has "learned" that the European Union "is preparing to offer the UK a trade deal on tougher terms than its deals with Canada, Japan and a host of other leading trade partners".

As a statement of the bleedin' obvious, this really does take some beating. Even with the paucity of media coverage, you would need to have lived on a remote desert island for a couple of months not to be aware that this was the EU's intention. How many times does a Commission spokesman have to repeat this before it's no longer news that the Telegraph deems fit to print?

But the self-important Foster hasn't finished with just this stunning "revelation". He goes on to pronounce that, "in what will be seen by industry as an unusually harsh move", the European Commission has warned EU member states that it would be a mistake to allow some UK industry bodies to be allowed to certify that goods conform to EU standards.

Confusing his terms somewhat, he makes it known that he is referring to "so-called Mutual Recognition Agreements (MRAs)", when in fact he actually means Mutual Recognition Agreements on conformity assessment – an important distinction which is necessary to avoid confusion with MRAs on standards, or even professional qualifications, all of which are very different things.

According to Foster, MRAs (on conformity assessment) "are granted to other key EU trade partners to facilitate the smooth movement of goods in key sectors". But, he says, such an agreement "could be withheld from the UK if it only seeks a basic trade deal".

Actually, that latter assertion is a matter of certainty. It almost goes without saying, as one usually finds such agreements embedded only in the most comprehensive of free trade agreements, and then with clear-set conditions.

For instance, in CETA (the EU-Canada trade deal), there are 178 references to conformity assessment, including the central declaration (Art 4.3) that the parties "shall strengthen their cooperation in the areas of … conformity assessment procedures … in order to facilitate trade between the Parties".

But this is immediately followed (in Art 4.4) by the further declaration that: "the Parties undertake to cooperate to the extent possible, to ensure that their technical regulations are compatible with one another". This is then heavily reinforced by Chapter 21 of the Treaty, on "regulatory cooperation", where we get this statement:
The Parties recognise the value of regulatory cooperation with their relevant trading partners both bilaterally and multilaterally. The Parties will, whenever practicable and mutually beneficial, approach regulatory cooperation in a way that is open to participation by other international trading partners.
When it comes to stand-alone MRAs on conformity assessment, these are in fact – contrary to the impression given by Foster – quite rare birds. Outside the framework of a single, comprehensive FTA, the EU has only agreed seven of them in its entire history. These are with Australia, Canada, Israel, Japan (now superseded by the new FTA), New Zealand, Switzerland and the USA.

Yet, apart from the Swiss agreement, these are actually pretty thin stuff, only covering a fraction of goods traded, with one exception – Switzerland. And here in the "Blue Guide" (download EN version), we find the reason why.

"The MRA concluded with Switzerland which entered into force on 1 June 2002", the Commission tells us, "is a comprehensive agreement based on the equivalence of the legislation of the EU and Switzerland".

Then making the point that "the case of Switzerland remains quite unique", it points out that the provisions of the Agreement and the harmonisation of Swiss technical regulations with those of the EU "ensure seamless market access for EU products to the Swiss market, and vice versa".

This was only possible, the Commission says, because, on the one hand, "Switzerland has an existing technical infrastructure (e.g. the public or private institutions dealing with standards, accreditation, conformity assessment, market surveillance and consumer protection) which is equally developed and deemed equivalent to the one existing in the EU".

That much could apply to the UK but, on the other hand, "Switzerland has chosen to modify its legislation in the sectors covered by the agreement, in order to align it with that of the Union. Furthermore, it has committed to maintain its legislation aligned whenever amendments to it are introduced by the Union to the applicable EU legal framework".

And there's the rub. As long as the UK is determined to make a meal out of regulatory autonomy, asserting at every possible opportunity that it intends to diverge from EU regulation, it is not going to get the EU to open its doors and offer it things such as MRAs on conformity assessment.

Never missing the opportunity to reinforce its own failures, though, the Telegraph gives the job of explaining the detail to Victoria Hewson - the IEA's Head of Regulatory Affairs and Research Associate - which she lamentably fails to do.

Even the headline is wrong, proclaiming: "In rejecting mutual recognition, the inflexible EU would violate the spirit of WTO rules", a mad assertion that suggests a complete misunderstanding of the role of MRAs on conformity assessment.

The "Blue Guide" itself points out that, where conformity assessment is required in regulations, national authorities of EU Member States may refuse to accept attestations of conformity issued under accreditation by non-European accreditation bodies not complying with the EU requirements.

However, it says, this refusal cannot be based on the sole argument of the non-fulfilment of the EU requirements by the third country accreditation body. The conformance to the EU requirements by the third country accreditation body is not a condition for acceptance of conformity assessment results.

In practice, the EU adheres to the principles of the WTO Agreement on Technical Barriers to Trade, and will accept third country conformity assessment on a case-by-case basis. What a formal MRA on conformity assessment does, therefore, is give certainty to exporters. There is no discrimination involved.

Where government-to-government agreements are in place, the Commission says, "national authorities of EU Member States will accept the test reports and certificates issued by bodies that the foreign party has designated under the MRA … in the categories of products or sectors covered by the MRA".

Hewson, incidentally, asserts that China has an MRA on conformity assessment with the EU – which it doesn't. But, this being the Telegraph, there is no need to be concerned with mere facts. Thus, back where we started, by all means let the media start talking about Brexit again – but let it first have something worth saying. Otherwise, a period of silence may be preferable.

Richard North 23/01/2020 link

Brexit: power to the people

Wednesday 22 January 2020  

In a different world, it might be of some interest that the House of Lords has approved the Withdrawal Bill, having added five amendments.

But since it is likely that these amendments will be voted down by compliant Tory MPs, this will simply trigger what is known as a "ping-pong" period between the two chambers, eventually ending up in some sort of fudged compromise.

Under normal circumstances, the Lords do have some leverage because Johnson needs to get this Bill into law before the end of the month, and the Lords can run it right to the wire if they hold their nerve.

But these are not normal times, so predictions are unwise. We will just have to wait to see what happens – idle spectators witnessing the wreckage of a system that once had some pretensions of becoming a democracy.

Oddly enough, the stresses are beginning to show, as Gordon Brown pops up with some comments on how to fix our ailing political system, proposing a "forum of the regions and nations and a council of the north" as well as a council for the Midlands.

These, he argues, should gain their funds in the same way as Wales and Scotland do, labelling this extremely modest proposal "a sort of constitutional revolution". We have been a unitary state for too long, he says. "Once we bring in nations and regions you have a very different kind of UK and Scotland, Wales and Northern Ireland would feel more comfortable".

There is something of this in The Harrogate Agenda, only we go much further in suggesting local income tax and the approval of annual budgets through the medium of local referendums. What we cannot tolerate is another layer of politicians sucking at the tit of the public purse, demanding money with menaces and telling us what to do.

This is why the most recent regionalisation movement, pushed by John Prescott, failed. We simply do not want more politicians, redistributing power between them. If there is to be a "constitutional revolution", it must involve a real transfer of power to the people.

In this sense, it really is quite wearying to see yet another politician perceive that there are flaws in our system of governance, only to come up with yet another raft of proposals which do not address the core failings. None so far have put the finger on the main defect, the failure to recognise that the essence of democracy is empowering people.

Coincidentally, we get a long whinge in the Guardian with Alberto Alemanno complaining "that the EU won't fix its democratic deficit with another top-down 'conference'".

This is a reference to Ursula von der Leyen honouring a promise she made after her appointment last year, to launch a two-year "deliberative process" tasked with overhauling how the EU works and listening to the voices of its citizens.

Alemanno's concern is that the conference is supposed to be "a bottom-up exercise where European citizens are listened to and their voices contribute to the debates on the future of Europe". What he evidently doesn't appreciate is that all the "listening" in the world will be to no avail if those listening are not required to act on what they hear.

But then, Alemanno, whose day job is working as professor of EU law at the HEC in Paris, is also the founder of an outfit called The Good Lobby, which aims to foster "collaborations between civil society and professionals (lawyers, consultants, academics)" willing to share their time and talents, "training civil society on the different ways in which we can make a change".

One of these days, one hopes, the chatterati might begin to realise that there is very little to be achieved by creating endless talking shops. Meaningful change will only be delivered when people have the power to make it happen. The trick is to enable that process without having to resort to violent revolution.

If there is an unlikely place to start looking for solutions, it might be the OECD, which at least is trying to get to grips with the way regulation works and how to make it better.

Explained in outline here, the OECD has been carrying out an assessment across all EU countries and the European Union of the use of stakeholder engagement, regulatory impact assessment (RIA), and ex post evaluation to improve the quality of laws and regulations.

With more detail provided by the OECD, we see the observation that "better regulation agendas" need "constant attention". The "set and forget", model of regulation does not work, says the OECD, just as it does not work for laws themselves.

This homes in on a particular interest of mine for, while the OECD argues for full "stakeholder" engagement before laws are made, it places special emphasis on systematic ex post evaluation of laws, leading to a review of existing regulations to determine whether regulatory goals have been achieved. This then allows for the introduction of improvements and the removal of obsolete or ineffective laws.

The issue here is that pre-legislative consultation is of limited value. Even those who will be directly affected often have difficulty visualising how new laws will work, and very often it is not until a law is in force that its faults are revealed.

In practical terms, the ability to change a faulty law is an important test of any democratic system. And it is here that not only the EU fails, but where we see a lack of flexibility in dealing with globalisation and the laws which emerge from global or regional bodies.

What we find is that, when standards and agreements are presented to national legislatures for codification as national law, texts cannot be changed and, once installed, the laws are almost impossible to change. Thus, what the OECD doesn't do, with its emphasis on ex post evaluation, is empower ordinary people.

For the next iteration of The Harrogate Agenda, however, we think we have at least a partial solution, which lies in the wider use of waivers and safeguards in international agreements, the nature of which is discussed here.

In short, our government should be constitutionally prohibited from agreeing to any treaty which did not encompass either waivers or safeguard provisions (of the nature of Art 112 of the EEA Agreement) which will permit any party to disapply specific provisions, without having to denounce entire agreements.

Where we then find that we are bound by an inappropriate or damaging law, which stems from an international agreement, the electorate should have the power to hold a referendum to demand a waiver or suspension of the relevant provisions, so that the law may be repealed or amended.

While one finds that some people manage to get extraordinarily worked up about such provisions, it is the case that both waivers and safeguards are common in international agreements, and provide vital safety valves where, otherwise, parties might feel the need to withdraw from them.

What is different here is that the people themselves are empowered to demand action, without having to go cap-in hand to the government in the hope that it might listen to their problems.

And there does lie the answer to many of our political woes. Politicians need to be aware that democracy comprises two parts, the people and power. Translated literally, democracy means people power, and without that power being thus devolved, no state can be considered to be a true democracy.

And, in the nature of things, if power is not given, it is taken. The latter is something that could be very messy.

Richard North 22/01/2020 link

Brexit: a matter of economics

Tuesday 21 January 2020  

Interestingly, The Times has weighed in on the "chlorinated chicken" controversy, arguing that a ban on produce from the United States for that reason would be "unwise and unscientific".

Whether a ban would be "unscientific" is actually arguable, but the differences in production regimes as between the US and the UK (under EU law) certainly reflect differences in regulatory philosophies which cannot be easily dismissed.

Another factor which must be taken into account is the effect accepting US produce would have on UK enterprises which export processed foods containing chicken to EU Member States. Post Brexit, those companies have to produce documentary evidence certifying that the chickens are reared and processed in accordance with EU law, which will add costs to the export process.

Additionally, they might also have to give specific assurances that their goods are US produce-free, even to the extent of having to run dedicated production lines where raw material sources are restricted and controlled. That, in turn, will add to costs and make our products that much more uncompetitive.

But, when it comes to costs, one wonders whether The Times, with its new-found enthusiasm for American chicken, has actually looked at current prices on each side of the Atlantic. Average retail prices for whole chicken in US cities (converted to sterling) stands at £2.45/kilo. On the other hand, a visit to Tesco over here will procure the same goods for £2.11/kilo while Sainsbury's will set you back £2.05.

For the US produce to reach the UK, there will be the small matter of shipping costs, which means that – on current price levels – there is no competitive advantage for American poultry.

It might be argued, however, that the US will mainly service the processing industry, but that has the problems I've already identified. And, for goods such as chicken soup and pies, the industry tends to use spent hens (laying birds which no longer produce eggs). Prices in the last few years have been low, down to 15p per bird, although I have known them as low as 5p. The United States could not possibly compete in this sector, especially as The Times tells us we also process spent hens from Ireland.

If we then turn to eggs, a dozen in the US will on average set you back £1.23 while the same dozen in Tesco (if you can get them – the standard pack size is 15) will cost a mere 96p. Moreover, US prices have been higher, peaking at £2.12/dozen in 2015.

The retail price for ground beef (minced over here) will set you back £3.52/kilo in the US, while your local Tesco wants a mere £3.30 for the hormone-free product. And for eggs and meat products both, there will be shipping costs to find.

From the look of it – if the retail pieces for these products are any guide – there is no great gain for the US in securing a trade deal with the UK. To judge from some prices, the UK might even find itself exporting food to the United States.

There, however, UK meat producers might find that they have a different set of problems to deal with. Here, much has been said (wrongly) about US food safety standards being lower than their EU equivalents, and with minced beef this is certainly not the case.

In 1994, the US Federal Food Safety and Inspection Service (FSIS) began testing samples of raw ground beef for E. coli O157:H7 and declared that any such product found with this pathogen would be considered adulterated. This was the first time a foodborne pathogen on raw product was declared an adulterant under the meat inspection law, a provision which also applies to imported meats.

In the absence of the post-slaughter bactericidal carcass washing (practised widely in the United States but prohibited by law in EU Member States), it is unlikely that such a "zero tolerance" standard could be achieved by British producers.

Where the volume warranted it, producers could of course set up dedicated plants to service the US market, but they could well confront the same issues experienced by Canadian producers servicing both the US and European markets.

Typically, there were finding that there were different markets for the different cuts but, to service one market required whole-carcass treatment which ruled out splitting carcasses to service the different markets. And without that flexibility, the trade is scarcely (if at all) profitable.

On top of that, in line with European practices, where the EU's Food and Veterinary Office (FVO) carry out audits of third country establishments, the FSIS conducts overseas evaluations to determine that meat imports from foreign countries are processed under "equivalent" inspection systems.

Agency officials also verify equivalency by visiting various foreign slaughtering and processing operations, and a plant seeking to export meat or poultry to the United States must first receive FSIS certification.

For UK producers, who will also have to undergo FVO inspections by EU officials, as well as having their operations certified as conforming to EU law, the imposition of US inspectors, could be the last straw. This will be further complicated when those inspectors ask for their own standards to be applied in order to certify "equivalence".

While the US actually imports about 20 percent of its domestic meat consumption, its main suppliers are Australia followed by New Zealand and Canada. Australia, New Zealand, Canada & Mexico accounted for 87 percent of US beef imports in 2015.

Currently, Brazil is seeking to resume exports to the United States, after the trade was suspended in June last year, which would add cut-price competition to an already crowded market.

And on that basis, it is really difficult to see the UK securing any significant volume of sale to the US in the meat and poultry sectors. And, if there is no price advantage in the US selling to the EU, one has to ask what all the fuss is about, when it comes to negotiating a US-UK trade deal that includes such agricultural produce.

Nevertheless, it is still the case that trade discussions could be on the stocks before we get down to brass tacks with the EU. That the EU is not rushing into the field was confirmed yesterday when the Commission stated that it would not be ready to start talks on a trade deal with the UK until at least the end of February.

The Commission's chief spokesman, Eric Mamer, told journalists that the Commission could adopt its proposal for the negotiation directives only once the UK had actually withdrawn from the EU, whence there was still "an institutional process" for these to be adopted by the European Council.

This, inevitably, takes time, which has the Commission saying that it will start negotiations "as quickly as we can", but it will certainly not be before the end of February, beginning of March.

But, even if the US-UK talks do get under way before the first formal session of EU talks, it should not take long for the reality of the situation to take hold. In many respects, there is little trade in certain goods between the UK and US because there is no commercial advantage from such trade, or because the practical and/or regulatory barriers are too high.

Undoubtedly, there must be some sectors which will benefit from a trade deal but, one suspects, the overall benefits might be less than expected.

And yet, with the current stance of HMG, we are rather boxing ourselves into a corner. From the man who famously told us that: "The free trade agreement that we will have to do with the European Union should be one of the easiest in human history", we now get from Liam Fox the warning that any automatic alignment to EU regulations as they change over time would be "completely incompatible" with the concept of Brexit.

He thus stresses that frictionless trade between the two sides is "simply not possible" under Downing Street's vision of the future relationship.

With the EU "busted" and a US deal potentially amounting to not very much, it does begin to look as if Johnson's heady optimism about getting Brexit "done" is a tad misplaced. The term "between a rock and a hard place" springs to mind, although that is far too laboured a cliché to use just now. We'll have to save it for later.

Richard North 21/01/2020 link

Brexit: Global Britain or Little England?

Monday 20 January 2020  

For all their rhetoric about plans to become a "global trader" once we have left the European Union, the indications are that the Tory world view is remarkably limited, with nothing even approaching a global breadth. Furthermore, this lack of vision seems to be shared by industry and the media, rendering us closer to a "Little England" than a Global Britain.

Subjectively, it would appear that the Johnson administration likes to cast itself as a global player, simply on the basis of its determination to break away from what it sees as the constraints of our membership of the EU, which opens the way for making its own bilateral trading deals with what were formerly termed "third countries".

Thus, we have the UK expected to give priority to trade relations with the US, with reports that we might even open talks with the Trump administration before formally engaging with the EU on plans for our future relationship.

Simultaneously, there are discussions about a trade deal with China, while Johnson is set today to call for "deeper investment ties between Britain and Africa at a summit for leaders of 21 African countries".

While this represents the UK's attempts to extend its reach throughout the world, its intellectual base resides with a programme of export substitution, replacing lost trade with the European Union with opportunities to extend trade with non-EU partners.

As such, this is a step back from the multilateralism which defines our current relationship with the EU, and a reversion to bilateral deals based on a largely obsolete "free trade" philosophy which stems from thinkers who established their ideas more than two centuries ago, when the world was a much simpler place.

Thus, what seems to escape the current breed of Tory trade zealots is the simple premise that trading in the world – i.e., buying and selling from foreign countries – does not necessarily qualify a nation as a major league global player. In the current environment, that would require a commitment to the much wider concept of globalisation, with serious engagement in the processes of integrating global trade systems.

However, if one is to take a cue from Sajid Javid and his comments on breaking away from regulatory alignment with the EU, this does not seem to herald a wider embrace of globalisation. Rather, it seems to presage a retreat from it, almost to a level of "Empire preference", where the UK traded only within a limited group of countries where it could control the terms of trade.

Were this to be otherwise, we would not have had Javid pressing for a broad-brush rejection of "EU rules", apparently not realising that the EU has been over recent decades one of the most prominent advocates (and practitioners) of globalisation. It is quite willingly surrendering its own standard-making capabilities in order to vest them in regional or global bodies, then adopting these standards in its own legislation.

Yesterday, I gave the example of UNECE and WP.29 in the formulation of standards for motor vehicles and parts, where the EU now works on a multinational basis with global trading partners to develop standards with global application.

No better example of this can be seen than in response to the VW emissions scandal, where vehicle emission tests were "massaged" to give far better results than could be achieved in practice. Now, we have UNECE working on global methodology to measure on-road car emissions, a process where:
The European Union, Japan and Korea are leading the development of the regulatory text that would lead to the establishment of a United Nations Global Technical Regulation on real driving emissions testing, which is expected to be adopted by 2020. The United States of America, Canada, India and China have also showed support to the initiative and are expected to participate in the development of the regulatory provisions, in a process which is transparent, data-driven and open to inputs from all parties involved.
In what is a fascinating development, we find the European Union, Japan and Korea working in partnership under the aegis of a UN body which will, in time, form the basis of EU law, but also extend to Japan and Korea through the EU's comprehensive trade agreements.

But this is by no means the full extent of process where the EU has "bumped up" its standard-setting to another level. From the sublime to the ridiculous, the EU's marketing standards for fruit and vegetables are now drafted by UNECE which works with the OECD in Paris to produce detailed codes.

By such means, we find that the EU's infamous "straight cucumber directive", is no more. It has been replaced by UNECE Standard FFV-15 on cucumbers, given legal effect in the EEA by Commission Implementing Regulation (EU) no 543/2011.

This process of globalisation has been going on a long time, and one of the best examples of evolution can be seen in the EU's approach to the classification, packaging and labelling of dangerous substances.

It was in fact the EEC which first legislated on this, back in 1967 before the UK had joined. Then, in Council Directive 67/548/EEC, it saw as its rationale for legislating, "the differences between the national provisions of the six Member States", which were seen to "hinder trade in these substances and preparations within the Community and hence directly affect the establishment and functioning of the common market".

Now, the system has gone global, known as the "Globally Harmonized System" (GHS), under the aegis of the United Nations, but implemented by the EU in Regulation (EC) No 1272/2008.

If the UK was intent on becoming a global player, therefore, it would not be looking to delink its trading legislation from the EU. Rather, it should be identifying those of global origin and endorsing those, while working with the EU and other players on continuing the process of global harmonisation, where we have an equal say in the outcome.

Furthermore, this is what industry should be asking for – with the support of the media. But, instead, one sees the UK's Society of Motor Manufacturers and Traders calling for the continued alignment with EU rules, with the CBI arguing that alignment "supported jobs and competitiveness for many companies".

Neither these industry bodies, nor the media, seem to be aware of the reach of global standards, or of the extent to which the EU has adopted them. Yet, the deeper you dig, the more you find, to the extent that as much as 80 percent of the EEA acquis might owe something to global or regional standard-setting, to say nothing of the growing body of financial regulation.

If the UK is to be a truly global player, therefore, the Johnson administration needs to abandon its vacuous rhetoric on alignment, and get with the programme. Alignment is driving the trading agenda at a global level. And if the EU has realised this, it should not be beyond the wit of the Tories to follow the same trail.

Richard North 20/01/2020 link

Brexit: culpable ignorance

Sunday 19 January 2020  

The thing about politicians who come up with fatuous and misleading statements is that it is sometimes difficult to work out precisely what we're dealing with. In some circumstances, it could be said that they are lying and in others, they might be genuinely mistaken.

There is a phenomenon, though, which we might call "culpable ignorance". This is particularly applicable to senior politicians of high rank, where they deliver statements which are manifestly wrong (or untrue), where the context is such that they should know what they are saying is wrong.

With that in mind, what does one make of Sajid Javid, the Chancellor of the Exchequer, and his latest interview with the Financial Times, in which he tells business that there will be no regulatory alignment with the EU after the end of the transition period, set for 31 December of this year? 

"There will not be alignment", he told the FT. "We will not be a rule taker, we will not be in the single market and we will not be in the customs union - and we will do this by the end of the year". Instead, Javid thus urges companies to "adjust" to the new reality.

Then, asked how regulatory divergence might impact industries such as automotive and pharmaceuticals with intricate supply chains spanning Europe, Javid came up with the jaw-dropping assertion that, "Japan sells cars to the EU but they don't follow EU rules".

If Javid genuinely doesn't know that his claim is false, then it drops immediately into the category of culpable ignorance. As Chancellor of the Exchequer, he should know that he is delivering an egregious falsehood – just supposing one accepts that a man in such a position really can be that ignorant.

As it stands, the EU rules applicable to the approval of motor vehicles have just been extensively revised, with standards currently set out in a massive 218-page tome entitled Regulation (EU) 2018/858 "on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles".

Strictly speaking, though, not even the EU adopts EU rules on motor vehicles. As it points out in Recital 48, the Union is a Contracting Party to the United Nations Economic Commission for Europe (UNECE) technical agreements on motor vehicle standards and in Regulation (EC) No 661/2009 it repealed its specific type-approval Directives and replaced them with the obligatory application of the relevant UN Regulations.

In order to reduce the administrative burden of the type-approval process, where appropriate, manufacturers of vehicles, systems, components and separate technical units are allowed to seek type-approval by obtaining approval under the relevant UN Regulations. These, the EU has adopted into its own legislation, together with a mechanism for updating the law as more UN Regulations are produced (or amended).

This is, in fact, an important development in the history of the Single Market, where the EU has delegated the standard-making authority in the motor vehicle sector to the World Forum for Harmonization of Vehicle Regulations, known as WP.29, established under the aegis of UNECE. It no longer makes its own technical rules but relies on WP.29 to do the job for it.

As regards Japan, even the likes of Sajid Javid might be dimly aware that the EU and Japan have recently concluded an "ambitious and comprehensive" Economic Partnership Agreement, with the text set out here, entering into force on 1 February 2019.

Unsurprisingly, given the extent of trade in the sector, motor vehicles and parts form a prominent part of the agreement, with the details set out in Annex 2-C, running to some 46 pages.

The central part of this agreement is that both parties recognise that the WP.29 is the relevant international standardising body for motor vehicles and parts, and that UN Regulations and general technical regulations (GTRs) are the relevant international standards.

Each party then agrees to accept in their markets any products which are covered by a type approval certificate made in accordance with UN Regulations. As long as the products are compliant with domestic technical regulations and conformity assessment procedures, in the area regulated by the relevant UN Regulation, they can be accepted "without requiring any further testing, documentation, certification or marking".

What has happened here, therefore, is that Japan and the EU have agreed to align their motor vehicle regulations on the basis of joint acceptance of harmonised UN Regulations, with the parties also agreeing to work with WP.29 in amending and extending UN Regulations.

This, for the EU, is now its standard trading model, which means that if a trading partner is looking for EU recognition of its standards, "without requiring any further testing, documentation, certification or marking", then they must adopt UN Regulations and procedures.

For the UK, this should not actually present a problem. We are founding members of UNECE and WP.29 and party to all its motor vehicle agreements and regulations. And, as it stands, we have perfect alignment with relevant EU legislation.

Apart from settling quota issues and rules of origin, therefore, the UK should not find it at all difficult to come to an agreement with the EU on trade in motor vehicles, simply by maintaining its relationship with UNECE and the adoption of UN Regulations.

If, however, we are to take the Javid line, what does that mean? If there is to be no alignment and we cease to be a "rule taker", does that mean we drop out of UNECE and WP.29, despite the fact that we take part in making the rules, and will continue to do so after Brexit?

If we do that, of course, then the only way the UK can export cars to EU Member States is if their manufacturers apply for "type approval" for each of the models they produce, which must be gained from one or other of the Member State national approval agencies, where standards and procedures must comply fully with UN Regulations.

There is no question, therefore, of UK car manufacturers avoiding alignment. Even if the UK goes to the absurd extent of producing its own, unique technical regulations, exporters would have to comply with UNECE/UN Regulations to gain access to European (EEA) markets.

There is then the further question as to what part of Javid's "new reality" companies must "adjust". Whether it is automobiles or car parts, chemicals or pharmaceuticals, or the whole raft of manufactured goods covered by the CE marking scheme, regulatory alignment is the minimum condition of entry.

On the face of it, Javid would appear to be setting up a dual-standard system, where manufacturers will have to produce to a domestic standard for sale in the UK, and then a different standard for the EEA – and for those countries which also adopt "EU rules", such as Japan.

All we are getting from the Chancellor, it seems, is incoherence bordering on the absurd. I almost liked him better in May 2016, when he wrote in favour of continued membership of the EU, in order to stay within the Single Market.

Even then, he was fully aware that – as he wrote of countries outside the EU: "Unless the exporting country submits to the importing country's rules and local regulator, access will be denied". There's no doubt about it, Javid wrote, "remaining in the EU is good for business".

Whether or not that was (or is) the case, what cannot be disputed is that this irrational pursuit of "non-alignment" with the EU certainly is not good for business. It does not make any sense and to hear it from Sajid Javid rather suggests that we have a man totally unfit for office.

Richard North 19/01/2020 link

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