Brexit: an intent to deceive?

Tuesday 23 July 2019  

For some reason, I'd marked down the date for the publication of "Snake-Oil" Singham's final report and protocols from his Alternative Arrangements Commission (AAC) as the 22 July. In fact, it was published on 18 July, an event easily missed given the sparse media coverage.

In the meantime, the interim report, which was published on 24 June, has been out for consultation. Rather predictably, this has meant the AAC listening to the business response and ignoring it completely, thus reproducing most of its original errors in the final report, with not the slightest attempt made to correct them.

Exactly the same final recommendations are made – eight in number – starting with the claim that "working alternative arrangements" should be fully up and running within three years, bolstered by the assertion that the arrangements are available by harnessing existing procedures and technologies and customs best practice.

Before going any further, one should note that of the limited media coverage, one report which stands out is an article in the Evening Standard written by Nicky Morgan MP, where she declares: "We've found an alternative to the backstop we all can agree on".

Morgan is co-chair of the AAC and tells us that the first ambition of the final report "was to kill off the idea that alternative arrangements are an unproven unicorn". The second, she says, "was to create a genuine route out of the jam, following the failure of government to start this work earlier itself".

Needless to say, this MP believes the report "fulfils both of those ambitions", not least because it is "based on the input of 23 technical experts", who include the former head of the UK Border Force, Tony Smith, with "ideas from Fujitsu and Vodafone, among others".

This overt appeal to authority typifies so much of what is wrong with the Brexit discourse, where Morgan is impressed by the collective work of "23 technical experts", despite their report being riddled with errors, false assumptions and statements which are quite plainly wrong. The MP clearly has done nothing to check for herself the veracity of the content and is simply beguiled by the prestige of her so-called experts.

In this, we can cut to the chase with an important example that we have rehearsed before, represented by the sixth recommendation which asserts that, "Sanitary and Phyto-Sanitary (SPS) checks should be carried out by mobile units away from the border using the existing EU Union Customs Code or a common area for SPS measures".

It really does say something of all these "23 technical experts" that they are all prepared to put their names to an extraordinarily basic error, in lumping SPS checks with the Union Custom Code (UCC).

Anyone with any serious acquaintance with the EU's application of SPS checks, through its system of Official Controls, will know that these are framed and implemented outside the UCC, and do not depend in any way on the code. In fact, for relevant products, customs control cannot start until SPS clearance has been given, fees have been paid and the appropriate certificates have been issued.

However, it is not even as if you have to be directly familiar with Official Controls. The UCC itself makes the distinction between customs controls and the separate "prohibitions and restrictions justified on grounds of … the protection of the health and life of humans, animals or plants". Anyone claiming expertise in EU customs procedures should know that the UCC does not deal with SPS checks, not least of the clues being that sanitary, etc., checks are not mentioned anywhere in the code and, in 160 pages, there are only five references to animals.

As far as it goes, therefore, the AAC report is about as amateur as you can get. Its authors demonstrate in one of their key recommendations – one which they acknowledge presents one of the sternest challenges to resolving the border issue – a complete lack of understanding as to how the system works.

Interestingly, it is not as if the AAC had not been warned about this. During the consultation period. Manufacturing NI directly challenged the competence of the report authors, it pointing out that "SPS is not customs". Given the impact SPS will have on creating a Border, it said, "it is perhaps advisable that the AAC Technical Panel would include a greater level of technical understanding in this area to guide its work in the next stage and before publishing its final report".

Needless to say, the Technical Panel ignored the advice and perpetuated their error, carrying it over unchanged from the interim to the final report. As regards the responses to the interim report, the AAC acknowledge the issues raised and claimed to "have addressed them to the best of our ability in the report". If this is their "best", then the AAC need to be disbanded and forgotten.

Of course, no more does this apply to their recommendation that SPS checks "should be carried out by mobile units away from the border", which relies on claimed "geographic flexibilities", which they the AAC asserts are "allowed in the Union Customs Code and BIP Regulation". These, they claim, permit the border authorities, "to move any facilities away from the border and to use mobile units to conduct checks where possible".

It is another mark of the utter amateurism of the AAC that, in addition to miscasting the UCC (which makes no reference to SPS checks, much less affording any "geographic flexibilities"), the "23 technical experts" allow the reference to this "BIP Regulation" to stand. As I pointed out earlier, there is no single BIP Regulation as such.

But even if there was, the law cited, Commission Decision 2009/821/EC isn't it. This Decision makes no reference whatsoever to the criteria for siting what are currently known as Border Inspection Posts (BIPs). For the law currently in force, one must go to Council Directive 97/78 which requires, apart from certain very limited exceptions, BIPs be located in the "immediate vicinity of the point of entry" into the territory of the Member State.

That "23 technical experts" were unable to detect that the reference cited was inappropriate is, I find, more than a little worrying. What makes it more so is that the AAC is talking about the future application of controls, to which effect it is beyond understanding as to why they did not insist on the reference being cited to the new law which takes effect from 14 December 2019.

This is Regulation (EU) 2017/625 which repeats the requirement that the newly designated Border Control Posts (BCPs) should be located "in the immediate vicinity of the point of entry into the Union". And supplementing this law is Commission Delegated Regulation (EU) 2019/1012 which does allow limited "geographic flexibilities" arising from certain geographical constraints. But, as the recital sets out:
Geographical constraints should be those that result from the natural characteristics and landscape of the point of entry, and the distance from the point of entry should not exceed what is strictly necessary to overcome the difficulties caused by the geographical constraints. Furthermore, that distance should not be such as to pose a risk to human, animal and plant health, animal welfare and the environment. Specific geographical constraints should include those that may cause major transportation constraints like, for example, high passes with roads unsuitable for the movement of animals and goods or causing significant delays in their movement.
Not with even the wildest of imagining can the law be taken as permitting the use of mobile control teams, where the only reference to their application is for visiting teams to deal with "unprocessed logs and sawn and chipped wood" in multiple BCPs. For the rest, Article 47 of Regulation (EU) 2017/625 requires official controls to be carried out on the relevant products "at the border control post of first arrival into the Union".

If the correct references had been cited in the AAC reports (both interim and final), it would have been far easier to have confirmed that the official sources do not support the claims made for them.

In the context, it is difficult to avoid the conclusion that the omissions are deliberate, to conceal the fact that there is no legislative support for the idea of mobile inspections – or indeed any SPS inspections away from the border. And if that is the case, the reports have been written with an intent to deceive.

Yet, this is only one aspect – and there are others equally suspect. For instance, the claims on "trusted trader" schemes are not in the least sustainable, which basically tears a gaping hole in the AAC report. There is nothing there of any value.

Given, though, that the AAC has the support of Alexander Boris de Pfeffel Johnson, no doubt a copy of its final report will be waiting for him when (if) he moves into Downing Street, and may form the basis of his approach to renegotiating the Withdrawal Agreement with the European Commission.

One can only say that, as birds of a feather, Singham and Johnson probably deserve each other. The tragedy is that we deserve neither.

Richard North 23/07/2019 link

Brexit: get a f*****g rocket

Monday 22 July 2019  

With Alexander Boris de Pfeffel Johnson burbling that, if we can put a man on the moon, we can solve the Northern Irish border problem, I'm reminded of a famous joke heard long ago, before political correctness had set in to rot the collective mind.

It concerns Saul, a devout Jew who had fallen on hard times. So engulfed in debt was he, that he prayed to the Lord to intercede and allow him to win the national lottery. In the days after the next draw, Saul watched the post like a hawk, but there was nothing. He thus intensified his prayers and again became slave to the postman's routine, expecting the notification to fall on his mat.

A week later, nothing had happened, nor the week after. Saul, now in utter desperation, raised his hands to heaven, and in a broken voice, implored his Lord and Creator once more: "Lord, Lord", he cried. "why hath thou forsaken me?"

All of a sudden, the sky darkened and clouds gathered to a terrible intensity, from which lightning smote the land. Then the clouds parted and from the depths came a deep, sonorous voice. It was He. "Saul, Saul", said the Lord", "do me a favour, do yourself a favour, buy a f*****g lottery ticket!"

Currently, it seems to me that Johnson is following in the footsteps of Saul. Had NASA taken the same path, we might have had the Lord imploring the Americans to "buy a f*****g rocket!" You can get to the moon, He might have said, but you do need something in which to strap your astronauts.

So it is that the Irish border problem is eminently soluble. But, as with the moon project, you are not going to get there by locking a few men in a room and have them making brm-brm noises. You need correctly to identify the problems, you need to address the obstacles, devise appropriate solutions and then apply them.

But what we get from Johnson's self-regarding article – with as near total clarity as it is possible to get in such matters – is the reason why he isn't going anywhere. After all this time, this superficial, blustering little man really doesn't have the first idea of what the problems are.

"At its core", Johnson writes, "the problem with leaving the EU is technical and logistical". From there, he thus avers that, "in order to come out of the EU customs union, and to maintain frictionless trade across the border of Northern Ireland (and indeed at Calais and elsewhere) we will need ways of checking goods for rules of origin, and whether they conform to the right standards, and whether or not they have been smuggled - but we have to do it away from the border, because no one can accept border controls in Northern Ireland".

What he does not understand, of course, is that borders are as much conceptual as they are physical. Mostly, they don't even appear as lines on the ground. They exist in the minds of men, with the resulting barriers created in terms of procedures and legal obligations. The significant problems, therefore, are not "technical and logistical". They are conceptual, procedural and legal.

However, with a man who so airily dismisses such things as "red tape", which can be so easily swept away with the distracted wave of a politician's hand – as if they had no substance - it is easy to appreciate why they would fail to register on Johnson's radar. But, as he will soon find out, ideas in the minds of men have far more traction than mere physical barriers.

The concept he will have personally to confront, if he assumes the office of prime minister – is the Single Market – something very few Tories understand anyway. Technically, it might be better described as a regulatory union, and his problem is that, on the UK's exit from the EU, the border between Northern Ireland and the Republic becomes the external border to the European Union.

That much is straightforward, so much so that even the Telegraph's resident guru has worked that one out. But, it does mean that when we place ourselves outside the Single Market, all sorts of procedural and legal controls apply automatically.

What does not seem to be fully (or at all) appreciated is that, unless exemptions have been negotiated within the framework of a formal free trade agreement, the controls must be applied in full and uniformly to all third countries – of which the UK will become one.

Under WTO rules, any concessions made by the EU to one country outside the framework of an FTA must be granted to all of its other trading partners. Major relaxations of border controls, could therefore, prejudice the integrity of the Single Market. This is something the EU is not prepared to do and will never negotiate. The integrity of the Single Market is a fixed and unchangeable quantum.

On that basis, the only sure way of securing frictionless trade across of post-Brexit Irish border is to maintain total conformity with the operating parameters of the regulatory union.

Here, what is definitely not understood is that applies to far more than simple conformity with Single Market regulations. On both sides of the border, there must be formal conformity with the regulatory ecosystem, which means that systems must be fully integrated right up to the highest policy level, with full and unrestricted intercommunication. And, in the case of Northern Ireland, this must apply also to the rest of the UK, if there are to be no regulatory borders between the province and England, Wales and Scotland.

This is, of course, what the backstop is all about, and it is that which has proved to be the only acceptable solution which the EU will adopt and which the UK government – under Mrs May – was prepared to put to parliament. In a nutshell, trying to secure frictionless trade without the backstop is like trying to go to the moon without a rocket, or expecting to win the lottery without buying a ticket.

Thus to categorise the border as a "technical and logistical" problem is to completely miscast it. Johnson rails against "technological pessimists", who seem genuinely to think that technical solutions are impossible. But it is he that has got it wrong.

When he talks so glibly about checks "away from the border", he has to address the issue that EU law requires sanitary checks to be conducted in the immediate vicinity of the point of entry.

This is not a technical problem – it is a legal problem. Even if there were technical solutions – and it is very hard to see what they might be – the overwhelming requirement is for the EU to change its laws. And, just for the benefit of the UK, that isn't going to happen, not least because if it is changed for the UK it must be changed for all of the EU's third country traders. That puts the integrity of the Single Market at risk.

Looking at this in more depth, when I wrote about "kippergate" recently, some of the discussion elsewhere touched upon the merits of HACCP (Hazard Analysis and Critical Control Points), a management system actually devised for the Apollo programme as a means of ensuring safe food for astronauts.

The essence of the system, and what made it so revolutionary at the time, is that it moves away from the traditional "end-of-pipe" solution, of ensuring food safety. This is where you set up a system, let it run and then test the finished product to see whether it conforms with set standards. Under HACCP, you are monitoring systems right though production and applying immediate correctives in the event of variance, so that conformity can be assumed without the need for end-point testing.

In the context of Brexit, the Single Market adopts the HACCP philosophy, where every state of production is subject to harmonised control – from broad policy, to enforcement, surveillance, data sharing, and standards - so that the end product can be freely circulated throughout the Union, without the need for border checks.

If you are going to take the UK completely out of that system, then the EU has to resort to the "end-of-pipe" solution of border checks as its main mechanism for ensuring that our products are suitable for circulation in the Single Market.

On those grounds alone, it is going to be extremely reluctant to tone down those checks but, if it did, that would also send the wrong message to its own Members. If UK products can enter the Single Market without system conformity, why should Member States be required to maintain the range of controls that they currently apply?

What, basically, we have therefore, as we saw with "kippergate", is a man who really doesn't know what he's talking about. Led astray by snake-oil con men such as Shanker Singham – who delivered his final AAC report on the 18th, carrying over many of the original errors – Johnson thinks he knows the answers to a problem he has yet to properly define and certainly doesn't understand.

And that, when push comes to shove, is what makes him so dangerous.

Richard North 22/07/2019 link

Brexit – a change of pace?

Sunday 21 July 2019  

So this is the week when it all happens, the week when the United Kingdom has imposed on it a new prime minister. That will leave Mrs May to field her final PMQs on Wednesday, whence she will travel to Buckingham Palace to tender her resignation to the Queen.

An hour later, her successor will be in residence at No. 10. And assuming it is to be Alexander Boris de Pfeffel Johnson – who hopes to secure 60 percent of the vote - he is expected to make his first speech as prime minister at about 5pm.

In the meantime, speculation is rife as to what we might expect from the imposter on Brexit, although it may well be that the Iran crisis forces its way onto the top of the political agenda.

As we have seen so often before, the media is regressing into well-worn grooves, with the Sunday Times trying out the staggeringly tedious canard about Johnson doing a side deal with key Member States and cutting out the Commission from the loop.

We saw an element of this in the early days with Mrs May, when it seems she seriously expected she could cosy up to Merkel and Macron and carve out an agreement with the Franco-German motor which would then be presented to the rest of the "colleagues" for endorsement, with the Commission quietly falling into line.

The naivety of this expectation is quite staggering, but it is somehow imbued in the Tory psyche that the EU is, at its very heart, a community of nations, which can override its supranational elements as long as there is sufficient political will and resolution on the UK side.

Mrs May, confronted with an almost unprecedented degree of unity from the Member States, was very quickly disabused of the idea that she could cut out the middle man. But the politicians and the media have learnt nothing from the experience. It seems that, before we can make any progress (if there is any to be made), we must go through the process all over again.

Thus we hear from the usual media suspects this weekend that the Johnson "team" is in contact with figures from five EU Member States, even to the extent that we are told to assume that they are "secretly wooing" the prime-minister-to-be in "a bid to thrash out a new Brexit plan that would avoid a no-deal disaster".

At the tip of the spear, so to speak, is Simon Coveney, Ireland's deputy prime minister and minister for foreign affairs. According to the Sunday Times interpretation, he is indicating that Dublin "is prepared to compromise" – although we quickly learn that the Irish backstop, is "not up for negotiation".

Although he makes it clear that his country wants to avoid a no-deal Brexit at all costs, and writes that Britain leaving without a deal would cause huge damage to Ireland, this is just more of the same – a reiteration of an unchanging position which could allow for cosmetic changes to the political declaration but leaves the Withdrawal Agreement untouched.

Despite this, we are supposed to be reassured by the news that "senior Irish politicians and diplomats" have held "peace talks" with two of Johnson’s cabinet allies in recent days, although we are not in any way informed about the content of those talks.

In addition, the ST would have us believe that "German and French figures, as well as the Dutch and Belgian governments", have also established contacts with the "Johnson team", supposedly signalling "an intention to do a deal".

On the Irish front, Geoffrey Cox, the attorney-general, met his Irish counterpart, Seamus Woulfe, and the Irish ambassador, Adrian O’Neill, last Monday. It was then that the Johnson mantra was delivered, to the effect that the UK "will pursue a no-deal Brexit unless the EU gives ground".

I don't think anybody – apart from the Johnson team – is under any illusions of what the outcome of this might be. But one assumes that Johnson's learning curve might approximate that of Mrs May, with the possibility that he might have realised by the end of the summer break that his strategy isn't going to work.

But a sign of the delusion that grips those around the Oaf comes with the additional news that James Brokenshire, a former Northern Ireland secretary, has also talked to Irish politicians. One of those wonderful anonymous sources – this one "in Johnson's transition team" is claiming that the Irish are "rethinking their position".

Another is suggesting that the talks could pave the way for a bilateral deal with Dublin that would render the backstop irrelevant, although – needless to say - Irish sources "downplayed" that prospect.

The same is being said of ambassadors from Belgium and Holland, who last week met Andrea Leadsom, who is now firmly in the Johnson camp. They, or so we are told, have "signalled a desire to come to a new deal". And, amid this delusional stuff, we get Johnson being "urged" to invite the French president and German chancellor to Chequers for talks, as if they are going to come running.

For the rest, there is no let-up in the general tedium, which can only intensify over the coming days as we are saturated in speculation on the actions of a man who, at best, is unpredictable and who might be better described as totally erratic and prone to acting on whims. It is a little difficult trying to predict what the man-child might do when he probably doesn't know himself.

For all that, there is plenty to keep the Westminster media claque occupied, which will probably make the legacy media unreadable for the next week or so. It's a pity sometimes that life isn't a bit more like a Netflix film, where you can fast-forward through the boring parts to find out what happens.

Better still, it might be a good idea to put Johnson on fast forward, so we can see him thrashing through his repertoire, only slowing him down in the unlikely event that he starts making sense. And while we are about it, we can do the same with the media. Perhaps if they printed all their speculation on one day, we could then be treated to much more informative blank pages for the rest of the week.

As far as blogging goes, I'm almost tempted to set them an example that they could follow. It might also be an interesting experiment to see whether it affects the general thrust of the comments.

Assuming that Trump hasn't turned Tehran into a glass-coated car park by Wednesday, we might also be entertained by the prospect of up to six Tory MPs jumping ship, to join the Lib-Dems, leaving the anointed one without a workable (or any) majority.

This could have interesting consequences which have yet to be addressed. In theory, the Queen could only hand over the reins of office to Johnson if he can assure her that he has a majority government (whether by coalition or not), in the absence of which she herself might suspend (or even dissolve) parliament and instruct Johnson to call a general election.

That is also very much part of the current speculation set, which partly explains why people are deserting the media in droves. I've even got to the stage where I'm not bothering even to look at the BBC news. And switching channels affords no relief … we just get a different brand of ignorance and speculation, most often based on exactly the same content.

One small joy is that Whitehall sources are reporting as saying that the Oaf was left "visibly shaken" after being briefed by civil servants to expect civil unrest if he goes through with his threat of a no-deal Brexit. Considering his lacklustre performance during the London riots, we can be fairly confident that Johnson won't handle unrest better than any other part of his portfolio.

Yet we have also been regaled by the news from another senior government source, in what must be an exceedingly leaky ship, that importing fresh food through Dover would be only the third highest priority in the event of no-deal. Clean water only comes fifth. Top of the list are life-saving drugs, followed by medical devices and fresh food. Nuclear power plant parts are then given priority over the import of chemicals to purify drinking water.

According to this source, contingency planning provides for 8,500 troops to be deployed to deal with transport blockages and possible civil unrest and the Ministry of Defence is training staff to deploy to ports to deal with traffic jams – assuming they haven't already been deployed to Iran.

By then, though, Iran might have secreted a dirty bomb in Whitehall, as its contribution to reducing traffic congestion in London, whence Brexit might undergo a change of pace for a while and take a back seat in our politics. That would be something else to blame Brussels for.

Richard North 21/07/2019 link

Brexit: fake news

Saturday 20 July 2019  

One of the interesting – if entirely unsurprising – outcomes of "kippergate" is that it provides another illustration of the fawning gullibility of the legacy media, and the way it is wedded to "prestige" and the authority of establishment figures.

Basically, if you present journalists with an authority figure in the right context – such as a European Commission spokesperson, or an official from the UK's Food Standards Agency – they will believe everything they are told, uncritically, without the slightest attempt to verify the supposed "facts" they are given.

Moreover, these "facts" will very quickly become the received wisdom, established as the definitive version of whatever it is they purport to hold, totally immune from correction, to be repeated down the line, whenever the issue is raised in the future. If nothing else, the legacy media has established itself as a collective which considers itself immune to error and is quite impervious to criticism or correction.

Thus, in the wake of Johnson's statement on kippers, we see the BBC's insufferably smug "reality check" pitch in to assess the claim that: "EU regulations require kipper suppliers to keep their products cool with ice pillows when they are delivered".

It is, incidentally, only Johnson who calls the familiar object of an ice pack by the rather bizarre name of "ice pillow", a term I've never heard before despite years of using these things. But how easily does the media adopt the off-piste terminology, betraying its underlying ignorance of the subject. The "naming of parts" claims yet more victims.

Anyhow, bolstered with its own fundamental ignorance of the subject, "reality check" summons up, with all the pomposity it can muster, to declare to the great unwashed that what Johnson had said, "is not true". EU regulation, it says, "covers fresh fish, not smoked fish".

This new-found reservoir of expertise on matters relating to food safety then resorts to what it says is a statement from the Food Standard Agency, conveying the view of the Agency that "food manufacturers must transport food so it is fit to eat. This might require a 'cool bag'". 

Elaborating on this, the Agency then goes on to say: The EU does have rules on temperature controls when transporting fresh fish. These are in place to ensure food is safe to consume. However, when it comes to smoked products, such as kippers, it is up to national governments to set any rules. Food safety regulations in the UK are dealt with by the Food Standards Agency".

We are then told that guidance from the Agency on "distance selling" for businesses to customers says "all foods must be delivered to consumers in a way that ensures that they do not become unsafe or unfit to eat". Thus, we learn: "Foods that need refrigerating must be kept cool while they are being transported. This may need to be packed in an insulated box with a coolant gel or in a cool bag".

In this statement, we are told the FSA said: "In the UK, smoked kippers that are sold online must be kept to an acceptable temperature throughout transit. Businesses must ensure the materials used to do so are suitable for the food and the conditions of use" 

Interestingly here, there is no reference to the statement of the Commission spokesperson who first sought to rebut Johnson's claim. For this, we must go elsewhere, piecing it together from multiple sources.

The originator was Anca Paduraru, who asserted that: "The case described by Mr Johnson falls outside the scope of EU legislation and is purely a UK national competence". Then she added: "When it comes to the specific case mentioned, while the food business operators have an obligation to meet the microbiological requirements, the safety requirements to ensure the safety of its food, the sale of products from food business operators to the final consumer is not covered by the EU legislation on food hygiene".

Completing her case, she then declared that: "There are strict [EU] rules when it comes to fresh fish, but these kinds of rules don't apply to processed fisheries products. I'm talking about temperature and the exact case he was explaining".

The essential issue here was the Commission claiming "not me guv" - this was a matter for the UK. And, while I have already rehearsed the flaws in this claim, I need to add to it.

Crucially, as anyone with even basic knowledge of EU will know, food safety is a shared competence. And, in accordance with the empty field doctrine, Member States are only allowed to legislate in non-harmonised areas where the EU has not already promulgated its own law.

As I noted yesterday, the EU "hygiene package" does allow Member States, in certain limited circumstances, to resort to what it calls "national measures", to fill gaps in the EU's law book. But, what has to be made clear is that their adoption is a highly formalised process, which – as this report and this reminds us - must be "established under national law in the Member States".

In other words, if a Member State wants to invoke national measures, it must put its proposal to the Commission, which vets it according to certain criteria. Only if approved, does the Member State get permission to frame its own law, the implementation of which is then monitored by the Commission's Food & Veterinary Office (FVO), to ensure functionality and to warn of possible conflicts with Single Market freedoms.

The point here is that, if the UK had exercised its competence – with the approval of the Commission – there would have to be a specific law in place. "Guidance", as such, cannot qualify as a national measure.

Furthermore, although the FSA frequently has difficulty telling the difference, guidelines are not "rules", and nor does the FSA "deal" with food safety regulation. The framing of law is a matter for the EU – which has first bite of the cherry – and Whitehall (Defra and Department of Health), with resultant (usually) Statutory Instruments having to be approved by parliament (if only by negative assent).

Thus, if there are national measures in place on "distance selling" (mail order) of perishable foods, there would be an identifiable legal provision to which the critics could point. Unsurprisingly, a simple search reveals no dedicated law, which means we have to resort to the Food Hygiene (England) Regulations 2013 as the general, catch-all provision.

It really is a great pity that the FSA spokesperson didn't read this. If he or she had done so, they would have happened upon Schedule 4 which sets the general requirement to keep "high risk" chilled food below 8ºC. However, as paragraph 2 states, this: "shall not apply in relation to any food which, as part of a mail order transaction, is being conveyed to the final consumer".

Instead, a requirement is substituted which states that "no person shall supply by mail order any food … at a temperature which has given rise to or is likely to give rise to a risk to health".

Effectively, what this does – as is the primary role of the 2013 regulations – is copy out EU law and give it an enforcement framework – specifically, in this case, the general temperate provisions of Regulation (EC) 852/2004. Effectively, without EU law, there would be no statutory controls on mail order foods, as the UK has not sought to implement national measures. The guidance produced by the FSA is advisory only, and has no direct legal effect.

As to whether an ice-pack is needed, this is a matter for the judgement of the producer, in conjunction with relevant enforcement agencies. In the first instance, the producer must carry out a risk assessment to determine safe transport temperatures.

However, given that the ESSA code of practice recommends 4ºC, one can see this becoming the "deemed to satisfy" level, where compliance is assumed if the food is held at or below that temperature. And to achieve this would normally require insulated packaging and one or more ice-packs.

The role of a code of practice in setting specific details is quite normal in the food sector, and many others. Producers are free to diverge from a CoP, only they then have to furnish technical evidence to support whatever temperature levels they have chosen.

But, as regards the propaganda hype, the whole of the media is at it. In addition to the BBC, we have the self-regarding Full Fact website, which sums up Johnson's claim that: "EU regulation means kipper sellers must package their kippers in ice".

It's conclusion is that, "This is incorrect", adding: "The EU does not set any requirements on the temperature at which smoked fish must be transported. The temperature requirement is a UK regulation".

In actuality, the situation is that the temperature control requirement is mandated by EU law. But neither the EU nor the UK sets out in law any specific temperatures, at which such foods must be kept if sent by mail order. Producers – on the basis of an EU-mandated risk assessment – decide what is best for their foods.

But that's not enough to stop Mark Stone, Sky News correspondent in Brussels, declaring: "EU exposes Johnson's kipper 'red tape' claim as nonsense", while the self-important Politico intones: "Brussels debunks Boris Johnson's fishy EU complaint".

Even the normally sympathetic Telegraph turns on its employee, with the headline: "Boris Johnson's claim that EU forces kippers to be packed with 'ice pillows' exposed as false". The Times, on the other hand, offers the boringly predictable (and inaccurate): "Euromyth: Boris’s kipper claim shot down".

So, we have a quite startling situation. Johnson has made an extravagant claim, albeit one which is partially correct, to the limited extent that temperature controls on mail order foods are mandated by EU law. The net effect, though, is to demonstrate that he has little idea of how the food safety regulatory system works in this country. That is worrying enough in itself, given that he wants to change it.

He is supposedly held to account by the European Commission and the FSA, neither of which seem fully to understand the system either. And the misinformation is then slurped up by the legacy media, which doesn't have the wit to do its own fact checking, but simply regurgitates what it has been told.

The ultimate irony here is that EU health commissioner Vytenis Andriukatis has accused Johnson of "fake news", rather reinforcing my view that much of the supposedly fake news we see comes from official sources.

One thing is for sure, when it comes to technical regulatory issues, the media is largely out of its depth, as are most politicians and even the regulators. That, as Pete says, is as good a reason as any why we should leave the EU. If the regulatory system is now so complex that even its creators don't understand it, it is time to rethink where we're going.

Richard North 20/07/2019 link

Brexit: Johnson is right … but mainly wrong

Friday 19 July 2019  

I didn't want to get embroiled in the Johnson "kippergate" affair, not least because when the Oaf pronounces on EU regulation, he almost invariably gets it wrong, as he famously did with his claims about bananas during the referendum campaign.

That much I expected once more with his claim in the final hustings of the Conservative party's leadership contest on Wednesday evening, when he held aloft a vacuum-packed kipper that had come from a fish smoker on the Isle of Man, whom Johnson said, was "utterly furious". 

"After decades of sending them through the post", Johnson averred on his behalf, he had had his costs "massively increased by Brussels bureaucrats" who are insisting that each kipper must be accompanied by a plastic ice pillow. "Pointless, pointless, expensive, environmentally damaging 'elf and safety'", the MP declared.

Had it been left there, there would have been little point – or interest – in pursuing the issue much further. Food safety regulation does indeed require temperature control of certain mail order foods, but the requirement is hardly onerous.

The disposable ice packs cost pennies, and are used to protect a premium product which retails at more than twice the price of a supermarket equivalent. It makes absolute sense to invest a tiny sum to ensure that mail order products reach their customers in peak condition, minimising growth of food poisoning and spoilage bacteria.

Even if it wasn't a legal requirement, this is one of those provisions which traders would adopt automatically. It gives consumers the confidence to use distance selling to buy high-risk, perishable food and has facilitated the massive boom in online food sales – the slight increase in costs more than compensated for by increased sales.

On the face of it therefore, this was another bit of Johnson hyperbole, the man venting his ignorance and prejudice about the nature of regulation, playing to the crowd. So it went: to cheers and laughter of the party faithful, he roundly declared: "We will bring the kippers back. It's not a red herring".

But what gives this story "legs" is yesterday's extraordinary intervention from European Commission food safety spokesperson, Anca Paduraru. To the delight of the gullible hacks - who, as always, suspended their critical faculties and believed everything they were told - she advised them that Johnson had got it wrong.

Said Paduraru: "The case described by Mr Johnson falls outside the scope of EU legislation and is purely a UK national competence". Then she asserted: "When it comes to the specific case mentioned, while the food business operators have an obligation to meet the microbiological requirements, the safety requirements to ensure the safety of its food, the sale of products from food business operators to the final consumer is not covered by the EU legislation on food hygiene".

Further adding to her case, she informed the hacks that: "There are strict [EU] rules when it comes to fresh fish, but these kinds of rules don't apply to processed fisheries products. I'm talking about temperature and the exact case he was explaining".

What is so remarkable about this though is that, at several levels, the Commission spokesperson was completely wrong. Covering the production and sale of mail order products is a raft of food safety law, almost all of it of EU origin. And it is certainly not the case that the sale of products from food business operator to the final consumer is not covered by the EU legislation on food hygiene. This is demonstrably not true.

The EU's "hygiene package" – most of which covers the sale of food to the public - starts with the General Food Law Regulation, Regulation (EC) No 178/2002, moves on to Regulation (EC) 852/2004 on the hygiene of foodstuffs, takes in Regulation (EC) No 853/2004, laying down specific hygiene rules on the hygiene of foodstuffs, and winds up with Regulation (EC) No 854/2004 on official controls on products of animal origin. For the purposes of the law, animals include fish.

The primary area where the Commission spokesperson falls down is in making a simple definition error, relating to the application of Regulation (EC) No 853/2004 which sets the temperature control rules about which Johnson so vitriolically complains.

The error made is in taking the provision of this regulation which allows, under certain conditions, Member States to adopt "national measures to apply the requirements of this Regulation to retail establishments situated on their territory".

This wrongly assumes that the Isle of Man suppliers are  retail operations, thereby exempting them from EU law and allowing produce to be subject to "national measures". But, as is evident from one of the suppliers' websites, these are producers selling directly to the consumer, representing a wholly different situation. "National measures" will not apply and operations must be subject to EU law.

Nevertheless, the Commission may also be relying on an exemption from Regulation (EC) No 853/2004 which applies to: "the direct supply, by the producer, of small quantities of primary products to the final consumer or to local retail establishments directly supplying the final consumer". In that case also, national rules apply.

However, it will be noted that the exemption applies only to "primary production" which, according to Regulation (EC) No 178/2002, means "the production, rearing or growing of primary products including harvesting, milking and farmed animal production prior to slaughter. It also includes hunting and fishing and the harvesting of wild products".

With this fairly tight definition, it is quite clear that "fishery products" as defined by Regulation 853/2004 include product which, themselves, are not primary products. The definition covers "all seawater or freshwater animals (except for live bivalve molluscs, live echinoderms, live tunicates and live marine gastropods, and all mammals, reptiles and frogs) whether wild or farmed", but it also includes "all edible forms, parts and products of such animals". The products of such "animals" would encompass processed foods such as kippers but these do not conform with the definition of primary products.

As to the temperature requirement during transport, this is where it gets complicated. Although 853/2004 does specify a temperature for "fresh fishery products", requiring them to be maintained "at a temperature approaching that of melting ice", this does not apply to processed foods such as kippers.

For temperature guidance, therefore, one must refer to Regulation (EC) No 852/2004 on the hygiene of foodstuffs which sets out a general requirement for food businesses "carrying out any stage of production, processing and distribution of food" to comply with "temperature control requirements for foodstuffs".

The criteria which have to be met, however, may not be set out in any specific laws but in formal guides approved by the Standing Committee on the Food Chain and Animal Health, in accordance with statutory procedures. This is part of the long-standing comitology process.

These are supplemented by informal guides, such as this produced by ESSA for "smoked and/or salted and/or marinated fish.

This code is actually fairly recent, dating from 2010 and sets a storage/transport temperature of 4ºC which takes account of recent work on the proliferation of Listeria Monocytogenes in smoked fish. While not having direct legal effect, such guides are taken as "deemed to satisfy" in that food businesses maintaining that temperature will be deemed to be complying with the law. It is from this that the requirement for ice packs probably stems.

Very often, of course, industry guides are elaborated in EU guidance and in national rules. Currently English and EU requirements (despite the latter having direct effect) are implemented by the Food Safety and Hygiene (England) Regulations 2013, with equivalent legislation for the devolved administrations. Specifically, this gives power to the Secretary of State to issue codes of recommended practice, which apply the "deemed to satisfy" principle, with the initial requirement in terms of temperature control mandated by 852/2004.

That has been the case with mail order foods, with the UK's Food Standards Agency producing an official guide on the hygiene of mail order food, in force since 2007. It notes that "perishable foods" are defined as those that are required by law, for food safety reasons, to be kept chilled or refrigerated.

Interestingly, it cites the applicable law as Regulation (EC) no. 852/2004, and in particular Article 4.3 which requires the compliance with temperature control requirements in order to maintain the cold chain. And, within that regulation is a requirement for national hygiene guides to be produced, conformity with which "must be taken into account when assessing compliance with legislation. We come full circle.

Thus, while the Commission spokesperson talks about "national rules" as if they were something separate, standing clear of Union law and entirely under the control of the Member State, they are actually an integrated part of a complex system which involves multiple agencies, trade associations and national bodies. 

Yet, any rules or guides must be directed at implementing the EU's hygiene package and be compatible with it. Furthermore, they must be submitted to the Commission for approval before they apply. They are, therefore, determined by the framework of EU law, even if there is some flexibility afforded in the wording. Effectively, even "national rules" are EU mandated. The Commission can't simply walk away from this, trilling "it's local". That's not how the system works.

And before we leave this, one needs to be aware of the of the origins of Johnson's kipper – the Isle of Man. And although the IoM is within the customs union, it is not part of the Single Market. Therefore, Regulation (EC) No 854/2004 on "official controls" applies, which has its own provisions on temperature control. Without it being stated directly, this may apply special provisions to IoM produce.

Finally, I am troubled by the lack of any definition of "direct sale". Exploring EU sources has proved time consuming and unrewarding. But, in respect of retail exemptions, we see a requirement for "marginal, localised and restricted activity".

The notion stems from the observation that retail establishments supplying the final consumer as their main trade should in effect trade their products locally (even if the destination is in another Member State) and so "are not engaged in long distance trade which requires more attention and supervision in particular as regards transport and cold chain conditions".

It seems to me, without being able to pin it down, that direct selling also might not accord with the aim of EU law, which is intended to grant exemptions only to "short food chain" operations, where a more relaxed view of temperature control can be taken.

It would be interesting to get clarification on this point, but I have always taken direct selling as a requirement for the producer physically to place the goods directly in the hands of the consumer. In any event, it would be unlikely that the commission would approve any national rules that had no provision for temperature control of mail order foods.

For all that, though, in the context of Johnson's outburst, none of this really matters. Whether national or EU law, there exists a perfectly reasonable and sensible provision requiring perishable mail order foods to be kept chilled. This is in the interests of producer and consumer alike, and is unlikely to change with Brexit.

In that, Johnson may be right on a technicality that the EU Law (in part) does require chilled kippers – for once, wrong-footing the Commission - but he is wholly wrong in criticising an essentially sensible measure.

Revised and extended as of 12 am.

Richard North 19/07/2019 link

Brexit: the least of our problems

Thursday 18 July 2019  

Over three weeks ago, I was discussing on this blog a report on a deal made between the Port of Calais and Channel shipping lines. The report had it that, in the event of a no-deal Brexit, British trucks would be prevented from boarding ferries at Dover if they didn't have the correct paperwork.

In this scenario, Dover would be used as a "filter" for traffic headed for the mainland, with the obvious possibility of massive tailbacks and disruption this side of the Channel. Vehicles without the necessary paperwork would be intercepted and stacked at Manston airfield as part of Operation Brock.

On the ball as always (not), BBC Newsnight has picked up the story, retailing it in its usual self-important way, as if it was the originator of the information, with no acknowledgement that this development is hardly news.

Predictably, though, the BBC is focusing on the possibility of gridlock in Dover as a result of the French action, where ferry companies have agreed to deny boarding in the UK to trucks without the right paperwork.

But, with this being an all too predicable outcome, even our lacklustre Department for Transport will be able to implement measures which will keep traffic away from the port, and avoid creating the long queues of traffic that the hacks are eagerly anticipating.

Thus, a DfT spokesperson is able confidently to state that: "There are well-developed plans in place to manage any traffic disruption in Kent in the event of a no deal scenario, keeping the M20 open with traffic continuing to flow in both directions".

Furthermore, there are long-standing plans for remote processing centres, one at Milton Keynes and the other in Hayes (West London), to handle incoming "high risk" traffic from EU Member States.

Even in the few months left to 31 October, when it looks increasingly likely that we crash out of the EU without a deal, there is time for additional contingency measures. And given the high profile and sensitivity of queuing traffic on the M20 and other approach roads, one can expect the authorities, with the backing of government, to put in a maximum effort in an attempt to ensure that the traffic flows smoothly after Brexit.

As we've pointed out before - quite recently - the first day outside the EU, on 1 November, will be a Friday. Most likely, the bulk of commercial traffic will be held back, with businesses taking a "wait and see" stance before sending stuff to Europe. Far from us seeing queues, therefore, the most probable immediate outcome of a no-deal Brexit will be a near-empty M20.

Perversely, therein lies a significant problem, but one of an entirely different nature to the one we have been schooled to expect. Because the latter-day emphasis of the media on queues at the ports, their presence or absence may well be taken as the test of the government's handling of Brexit – with no queues being taken as a measure of success.

One can imagine, therefore, a Johnson-led administration crowing about "project fear" and talking up claims about how their preparations have seen off the worse impacts of a no-deal Brexit. And, although border problems might not be expected to bite for a few weeks, the media is certainly superficial enough to buy in to the "success" story.

Should this happen – and there is every likelihood that it will – this will be yet another example of the legacy media missing the point. With the various contingency measures planned or already in-place, the indications are that there will be no obvious, visible effects of a no-deal Brexit. It will be a slow burn, with the main impacts measurable only through a web of statistics.

In that context, a while back I wrote about the role of European exports on the UK egg industry. Generally, the flow of fresh eggs across the channel is roughly in balance, so that we export as many eggs as we import. This has led some pundits to suggest that this sector would be unaffected by Brexit. We would simply divert production to the domestic market, and cease to take in imports.

However, things are never that simple. Although very few of our producers actually export directly to Europe (or anywhere else for that matter), the industry as a whole is largely dependent on exports to Europe to maintain its overall profitability.

The issue here is what is known in the trade as the "spring flush". Although commercial laying birds are far distant from the original jungle fowl and live in completely artificial environments, they still go into high gear in the spring (their natural laying cycle), whence egg production peaks.

This period normally matches Easter, one of the periods of highest egg demand – but there is not always an exact match. Before the Easter demand takes off, the hens are already in overdrive (especially if Easter is late). Producers watch nervously as a national egg surplus builds up and prices teeter on collapse. With predatory supermarkets, they can easily end up selling at less than the cost of production, wiping out profits for the entire year.

Fortunately, there is an answer – export. For reasons that were never clearly explained to me, the Dutch demand cycle is slightly different to that of the UK, taking off earlier in the year before the hens got into the spring flush. Thus, by the early spring, we could usually anticipate an egg shortage in Holland, driving up the prices there.

What then would happen was a number of entrepreneurs would contact UK farmers and buy up the entire UK surplus for a few weeks, stripping the wholesale market. They would fill up a number of containers for transport to the Dutch market. And because of regulatory harmonisation and the Single Market, that had become a simple operation: all egg producers had become export compliant.

This transfer of the surplus has the effect of stabilising the prices and, for many egg producers, without this they would be trading at an annual loss.

The point here is that most of the time, most egg producers did not export. But since they all complied with EU rules, when market stabilisation measures were needed, their surpluses could be bought up by middle men and exported – often bought off the wholesale market without the original producers being aware of the destinations.

Come a hard Brexit, where easy (and rapid) export of eggs to the continent might no longer be possible, there won't be any measurable effect on the industry. The main export demand would not be until the following spring. And if the market stabilisation system is no longer able to function, it may be towards the end of next year – or beyond – before we see a dramatic upturn in the number of bankruptcies, none of which will appear to be directly Brexit-related.

This is the problem with making predictions about the impact of Brexit. Business in the 28 EU Member States is now heavily integrated and interdependent, but the links are not always apparent. A component company, for instance, may sell its produce only to UK firms which in turn may make sub-assemblies for larger companies which do export their products.

In such a scenario, the actual volume of product from the component suppliers which ends up incorporated in other products destined for EU Member States may be relatively small – say about ten percent of their total business. But, for many businesses, it is that last ten percent or so that makes the profit and thereby ensures survival. A sudden loss of even small volumes of trade can drive them into liquidation.

Nothing of this is easily measurable, or even predictable – and the effects are most certainly not immediate. When I wrote recently of Brexit building up an accumulation of disincentives which will dissuade continental buyers from sourcing goods and services from the UK, it is thus also germane to add that the effects will not be readily visible.

With a government determined to talk up its Brexit "success", or at least conceal the adverse effects, one might see business failures attributed to other causes – anything but Brexit. Only when a downturn is so well-established that it is impossible to conceal, might there be a grudging acknowledgement that Brexit has been a causal factor in our woes.

Should this be the case, it will turn out that traffic queues at Dover – if they materialise – will have been the least of our problems. The slow burn effect is the one to look for, and that will not necessarily be easy to detect in its early stages.

Richard North 18/07/2019 link

Brexit: Rees-Mogg - is he really that thick?

Wednesday 17 July 2019  

Tucked in behind the Telegraph paywall is a piece by Jacob Rees-Mogg which manages to combine an extraordinary level of ignorance with the patronising superiority which is the hallmark of the man.

In his piece, Rees-Mogg is setting out to demolish Chancellor Hammond's prediction that a no-deal Brexit could cost the UK economy £90 billion. In so doing, rather predictably, he dismisses the Treasury's work as "project fear", substituting his own received wisdom to make his case.

Central to his supposed demolition of Hammond's case is a straw man assertion that the greatest negative impact of a no-deal Brexit "is the idea that 'behind the border' non-tariff barriers will suddenly spring up". depressing GDP by a staggering 4.2 percent. This, accounts for around half of the £90 billion negative impact cited by Mr Hammond.

Simply stated, says Rees-Mogg, "this means the Government believes that all sorts of new product standards will face our exporters and importers, despite over 20 years of shared rules and standards". And, this is an idea that Rees-Mogg rejects, on the basis that "such behaviour on the EU's part would be illegal under WTO anti-discrimination rules".

From the very start, however, Rees-Mogg miscasts Hammond's statement. The Chancellor did not refer to the effect on GDP in general, but to a "hit to the Exchequer of about £90 billion" over the next 15 years, which would have to be factored into future spending and tax decisions.

As to whether the 4.2 percent loss of GDP cited by Rees-Mogg is accurate is anyone's guess. These financial predictions are difficult to get right, not least because there are so many variables. But the actual figure is not the issue here. What we are dealing with is the classic "rookie" mistake that has this backbench MP believing that a no-deal Brexit will lead to a situation where "non-tariff barriers (NTBs) will suddenly spring up".

Sadly, this basic error still distorts the Brexit "debate", but someone of the status of Rees-Mogg should at least be aware of the fundamentals. As I pointed out in a blogpost of February 2017, there is no question of these NTBs suddenly springing up. They already exist.

The analogy I used was one of a medieval walled city, inside which the 28 traders happily do business – with the public and between themselves – secure within the fortifications.

I then posited that, when one of those traders decides to move his stall outside the walls, he will no longer be able to trade freely with the businesses still inside. But this is not a question of new barriers being erected. They already exist, and the trader has chosen to move himself outside the walls, placing the barrier between himself and his trading partners.

The second basic mistake that Rees-Mogg makes is in assuming that conformity with "shared rules and standards" gets us a free pass to trade with the EU. Yet, as we have seen so many times, Barnier has referred to integration with the "regulatory ecosystem"- the "standards, certifications, rights, regulations, supervision and jurisdiction" that make up the Single Market – as an essential precursor to frictionless trade.

As I also pointed out, this time in July 2017, conformity with standards is only the "starter for ten". Without a major element of systems harmonisation, mere conformity with standards is not sufficient to allow exporters to gain untrammelled access to the markets of EU Member States. Yet still, Rees-Mogg believes that "over 20 years of shared rules and standards" actually means something.

For his third error, however, Rees-Mogg comes up with the classic. The "imposition" – as he would have it – of supposedly new non-tariff barriers would, he asserts, "be illegal under WTO anti-discrimination rules". This is the man who is so keen on the WTO that he sees no bar to leaving under "WTO rules", yet in this vital aspect has almost no idea of how they apply.

As early as 2014, though, in Flexcit, I was rehearsing this issue, noting that free trade agreements were essentially discriminatory, permitting parties to relax trading rules between them. But, in the absence of such an agreement with the UK – as in a no-deal scenario – the EU would be obliged under WTO rules to apply the full range of border control measures to EU-UK trade. "The EU would have no choice in this. It must obey WTO rules", I wrote.

We thus have the extraordinary situation where Rees-Mogg in his interpretation of WTO rules has the situation exactly reversed. Far from applying NTBs being a breach of WTO rules, the EU would be obliged under the rules to apply them. 

In his article, therefore, we have a man purporting to set himself up as the great authority on matters to do with a no-deal exit, making three of the most basic mistakes possible – indicating a most profound ignorance of the subject. Yet what really sticks in the craw is his patronising attitude as he marks down Hammond's view of a no-deal Brexit as "pure silliness".

Rees-Mogg, of course, is not the only person to take such a lofty view of opposing ideas, with the academic Lorand Bartels resorting to a similar epithet when challenged over his own errors. Bluntly, someone who resorts to this sort of language isn't all there. In the case of Rees-Mogg, this betrays an essential lack of maturity which speaks much of his personal inadequacy as a human being.

The trouble is that here we're not dealing with just any ordinary backbencher – if there is such a thing. Jacob Rees-Mogg is chairman of the European Research Group, supposedly leading the intellectual spearhead for the "hard Brexit" case. But, if after three years down the line from the referendum, we have such a key figure displaying this level of ignorance, there is no hope.

The point here is that Rees-Mogg is not on his own. This is a man venting his errors in the pages of the Telegraph. This is a national daily newspaper, where contributions are supposedly checked for accuracy. Clearly, when they vetted this authored piece, the editors went AWOL.

What comes across from this is that there is no longer any premium on accuracy or knowledge. As long as your face fits and you are saying things it wants to hear, the Telegraph is home to any manner of ill-conceived tosh, betraying the trust of its readers and abandoning its duty to present factually correct information.

Under such conditions, it is almost impossible to conduct a rational debate. Where error and misinformation is freely allowed, vested with privilege and prestige, mere facts and argument cannot compete. The most carefully constructed case can be swept aside in an instant by a surge of ignorant drivel – polemics and prestige trump the facts every time.

But there has to be more to this than mere stupidity – an issue that has fascinated and troubled this blog for years. More recently, though, I quoted Simon Kuper, who argued that some people sound stupid or ignorant because they are stupid or ignorant. And, in this context, it is not difficult to concede that Rees-Mogg is saying stupid things because he really is that stupid.

Nonetheless, I had promised to explore this phenomenon further, as to why politics these days seems to be dominated by institutionalised stupidity. And if this is having such an effect on contemporary politics, it is something that can no longer be ignored. Stupidity now seems to be a major influence on events.

On the other hand, if someone could come up with another plausible explanation as to how a high-profile MP can prosper on the back of such profound ignorance, with the apparent approval of a major national newspaper, I'm all ears.

Richard North 17/07/2019 link

Brexit: they catch up eventually

Tuesday 16 July 2019  

I sometimes think I could go on holiday for six months without writing a thing, and I'd still be ahead of the game – by a factor of some years, in the case of some issues such as the effect of a no-deal Brexit on F1 racing.

So it comes to pass that the mighty, omniscient Robert Peston has finally discovered that, with nothing between the Tory leadership candidates, we are heading down the path towards a no-deal Brexit.

As far as I'm concerned, it was weeks ago that it was blindingly obvious that neither Alexander Boris de Pfeffel Johnson nor Jeremy Hunt had the first idea of how to manage Brexit, both residing in the fiction that they could abandon the backstop and renegotiate the Withdrawal Agreement with the EU.

But then, when the likes of Peston start noticing the blindingly obvious, it simply confirms their brilliance, allowing us plebs to stand back in wonderment at their skill and perspicacity which allows them to divine that which has been known for weeks to everyone with a brain.

Of course, such brilliant leaders of men will never, ever realise how far behind the curve they are. So deeply rooted in their bubble, listening only to their adoring claque, nothing exists until the likes of Peston have invented it and brought it before the great unwashed.

That they are "brilliant" is a given, and we know this because they keep telling us, as in the tail-end of the Telegraph piece which enjoins us to "sign up for our brilliant subscriber newsletter".

For me, I rather take Margaret Thatcher's line, when she famously said, "Power is like being a lady... if you have to tell people you are, you aren't". Basically, if you keep having to tell people how brilliant you are, you aren't.

Nevertheless, that won't stop the legacy media preening and posturing, massaging their own egos and spewing out error-filled misinformation. That's what you do when you're in the media, because that entitles you to stop listening to anyone outside the bubble, conferring a free pass which absolves you from having to apologise for delivering second-rate work.

But there you go. Robert Peston has told us that a no-deal is now "probable". With the public now exposed to such brilliance, this affirms that our intellectual masters have got there – eventually.

Give them another three years and they might have worked out what non-tariff barriers mean, and how they impact on third country trading arrangements. Some of them might even begin to understand what "third country" actually means in relation to the EU.

But then we mustn't expect too much of these geniuses. Too many facts might hurt their little brains, while telling their followers too much might overwhelm them with adoration. Once you've reached the pinnacle of brilliance, there is nowhere else to go.

Despite Peston being on the case with his factoid of the day, therefore, there is little chance of him catching up with the rest. If he ever did, I the lowly blogger, would be redundant.

As it is, the media generally don't have a clue what a no-deal Brexit really entails, so I will probably have to wait quite a while for my redundancy notice, although we do get a tiny glimmer of sentience from Michael Deacon in the Telegraph. As court jester, he has a licence to ask awkward questions, taking a look at the absurdity of maintaining the no-deal Brexit "on the table", as leverage in the hypothetical renegotiations which the EU says we're not going to have.

Says Deacon, Johnson and Jeremy Hunt agree on at least one thing: that the way to get a better Brexit deal is to threaten to leave with no-deal – the very thing that Peston seems to have noticed.

Johnson, for example, has said he wants EU leaders to "look deep into our eyes and think, 'My God, these Brits actually are going to leave. And they're going to leave on those terms'". Such will be the EU leaders' alarm – so the theory goes - that they’ll ditch the backstop on the spot.

The one possible flaw in this plan, Deacon asserts, is that the EU leaders might decide a no-deal Brexit would be a lot more damaging to Britain than it would be to them. If that is what they think, they might not find the threat quite so compelling, leaving Deacon to paint an alternative scenario:
The British Government might as well be saying: "If I shoot myself in the foot with this machine gun, it's going to make a terrible mess of your carpet. Imagine the stain. Could take you a whole hour to get it out. All that scrubbing. Be a real nuisance for you. Plus you'd have to put up with the horrible sound of my screaming, as I writhe around in unspeakable agony on your floor until the paramedics arrive. Wouldn't be much fun for you, would it? Could ruin your evening. Do you really want that? Are you sure?"
This is about as close as it gets to pointing out how absurd the stance of the leadership candidates is, delivering us a train wreck where the only choice is the side of the rails from which we want the doomed train to plunge.

One can only assume that, once the new leader assumes office – but not power – he will realise the fatuity of his strategy and start all over again, trying to craft something sensible. Only then will be find that he is subject to exactly the same constraints that stopped Mrs May from making progress.

However, the candidates are for the moment having to satisfy the whims of the Conservative Party, which is not in the reality business. Slurping up the propaganda from the Spectator and the Telegraph, with occasional sojourns elsewhere, they have allowed themselves to be convinced that no-deal is a tenable option, although they are equally convinced that the Johnson "handbag" strategy will have the EU blinking furiously at the 59th minute of the eleventh hour on 31 October.

When such stupidity is given the power to decide the leader of our government, there is no obvious means of escape. The "stupid party", living up to its name, is about to condemn us to perdition.

It is probably now too late to influence events – not that we could anyway. But most of the leadership votes are now in, and the die is probably already cast. Too late, the Guardian is pointing out what an odious little man Johnson really is, one of a series of pieces about "the real Boris Johnson". But it will not have the slightest effect. Nothing the Guardian can say about the character of the Tories' favourite son will touch his popularity in the party.

That will then leave the paper – and others, if they have a mind to do some real journalism – to "do a Peston" and try to catch up on the most likely effects of a no-deal, and the mechanisms for avoiding disaster.

When you're in the catch-up game, though, the big problem is that by the time you get there, the birds have usually flown. Properly to influence the debate, the media needed to have been exploring the consequences of a no-deal Brexit the moment Mrs May put the possibility on the table with her Lancaster House speech back in January 2017.

Thus, while we are always pleased to see the media catch up – eventually – sometimes "better late than never" doesn't hold true. To define and shape the debate, the media needed to be on the ball, ahead of the game and ready to inject real information into the system. It wasn't, and still isn't. "Eventually" really isn't good enough.

Richard North 16/07/2019 link

Brexit: the wages of propaganda

Monday 15 July 2019  

If ever one needed to know why businesses are so often badly managed, and why the banking industry makes such a mess of things, it is probably because they employ intellectual lightweights such as Anthony Browne, one-time business reporter and economics correspondent for the BBC and former policy director for economic development for Alexander Boris de Pfeffel Johnson when he was mayor of London.

Typically, this is the sort of person – a "quango queen" with trousers - to whom the Spectator turns when it wants to extend its no-deal propaganda, knowing that the man will deliver just the right level of misinformation to make it look plausible, without actually veering anywhere near the truth.

Thus we have the decidedly smug and self-satisfied Browne seeking to address the question of whether a no-deal Brexit would be a disaster, to which he offers the predictable answer, "probably not", then purporting to give the reasons why – building on an edifice that asserts that "the government is better prepared than it has let on".

It matters not in the least to the Spectator that this self-serving rhetoric coincides with a statement from chancellor Hammond – to be broadcast in full by the Panorama programme later this week - warning that the UK "will lose control in a no-deal scenario", not least because "others control the levers", in particular the EU-27 and private business.

Necessarily, he says, a no-deal Brexit would leave Britain at the mercy of the French, who would be able to "dial up" or "dial down" at will the queues for goods going into the port of Calais. Paris would be able to exploit the Channel crossing to exert pressure in the same way that the Spanish had used the border with Gibraltar.

Despite spending more than £4 billion on Brexit preparations, Hammond said there would be a limit to the amount of influence the government could exert in the event of no-deal. We can seek to persuade the others, he said, but we can't control it. "For example, we can make sure that goods flow inwards through the port of Dover without any friction but we can't control the outward flow into the port of Calais".

What Hammond is saying, of course, would easily qualify as a statement of the bleedin' obvious, as we've been rehearsing such issues for years, issues about which the legacy media and the politicians have displayed their usual level of ignorance, so much so that what Hammond is now saying is actually treated as news.

Needless to say, the possibility of delays at Calais is precisely the sort of issue that the egregious Browne homes in on, this being one of the headline issues which will most likely define the media perception of a no-deal Brexit.

Last year, says Browne, the French ports of Calais and Boulogne weren't ready, leading to predictions of the M20 becoming a lorry park, and shortages of food and drugs. But, he now reassures us, Calais has now stepped up the number of checkpoints, employed 700 customs staff, and bought scanners which check lorries as they drive past. Then, as the no-dealers always do, Browne relies on the president of the Port Boulogne Calais, who has said, "there will not be any delay" in a no-deal Brexit.

It is this element of wishful thinking that really gives the game away. Jean-Marc Puissesseau, Browne's "president", was the man who originally warned of 20-mile queues outside Calais but later changed his tune when he and other local politicians conceived the idea of building an off-site joint customs SPS facility at La Zone Turquerie to service both the port and Eurotunnel.

But, like so many local (and national) politicians, Puissesseau had very little idea of how EU "official controls" work, and had entirely misinformed himself about "derogations" that might permit an off-site facility – the key to his plans to avoid congestion at the port and thus ensure that there were no delays.

When Brussels stepped in, however, the local authorities fell into line and we now see Border Control Posts established within the perimeter of Calais Port, with separate facilities established at Eurotunnel. The very arrangements needed to avoid congestion, therefore, have been vetoed by Brussels.

Furthermore, it is in the nature of the system that, while the port authorities provide the physical infrastructure for customs and SPS checks, staffing is provided by national government who work to a remit set by EU law and supervised directly by Brussels. The local authorities have no control over the scale or tempo of inspections, and must simply conform with the requirements of the authorities charged with implementing border controls.

It goes without saying, therefore, that with both customs and SPS checks being carried out at Calais Port and Eurotunnel, when hitherto there were none, there are going to be delays. The only question is the extent, and this is unanswerable until the system goes into operation.

However, it cannot necessarily be assumed that official border controls will be the only factor at play. Already, the Calais Port has experienced delays through industrial action from customs officials. But what might also be experienced is blocking action by either farmers or fishermen, who see in Brexit an opportunity to curtail UK imports. This possibility cannot be discounted.

Interestingly, Browne doesn't directly mention SPS controls and the need for Border Control Posts, and nor is he up-to-date on the Calais situation. But then, writing for the Spectator, he doesn't actually need to be informed. He just needs to tick the boxes which will keep the faithful happy, sedated by misinformation which allows them the comfort of believing that no-deal is a credible option.

That said, much of what Browne relies upon lies in straw man territory. For a long time – after being at the cutting edge of evaluating the effects of a no-deal Brexit – I have taken the view that the headline delays and possible shortages, so beloved of the legacy media, are the least of our problems.

Mostly, what we will see is the accumulation of disincentives, some small and some large, which will dissuade continental buyers from sourcing goods and services from the UK. Progressively, as is already happening, UK exports to EEA territories will gradually decline, the fall picking up momentum should we leave with a no-deal. The net effect will be a collapse of exports, causing major damage to a market worth £270 billion.

This, as Hammond indicates, is something over which the UK has little control. When we leave the EU, we become a third country in our relationship with the EU, and the restrictions that apply to our trade will automatically take effect. Without the mitigating effect of a comprehensive free trade agreement, the result can only be a substantial downturn in trading volume.

Significantly, Browne scarcely talks of our new status as a third country, which relieves him of the need to explore the wide range of implications. Rather, he focuses his readers' attention on preparations for a no-deal, heedless of the fact that so much lies beyond the remit of the UK.

But this is the way the game is being played. Politically, for the likes of Johnson, no-deal must be seen to be a tenable option. So the hacks and the drones are enlisted to make it so, with compliant media sources enlisted to the propaganda effect – the self-same media outlets that are so quick to squeal about "press freedom" if there is ever a hint on constraint.

What these outlets clearly haven't anticipated is that there will be a price to pay for dedicating themselves to the pursuit of political propaganda. Despite the facile reassurances of the likes of Browne, the net is closing, as no-deal becomes more of a reality by the day.

European Commission president-designate Ursula von der Leyen has in recent days reiterated her strong support for the Withdrawal Agreement and declares that the backstop is "absolutely necessary", ruling out once again any prospect of a renegotiation.

If then, 31 October becomes the date of our no-deal departure, the unavoidable realities will not be long in becoming evident. And all those legacy media outlets which have talked down the consequences of a no-deal will have some explaining to do. Blaming the EU will only take them so far, whence the credibility of media will take another lurch downwards.

For the moment though, their lies and misinformation prevail – no one can prove them wrong. But events will tell their own story. Then the wages of propaganda will become due.

Richard North 15/07/2019 link

The Harrogate Agenda: a package of reforms

Sunday 14 July 2019  

Amid all the negatives, there is one possible positive outcome from the selection of Alexander Boris de Pfeffel Johnson as UK prime minister. Once the full horror of this creature hits home, people may rebel against the system that put him there and move towards a directly elected prime minister.

Before we get there, however, we have a lot of thinking to do, from which needs to emerge a degree of clarity about the nature of democracy which currently does not seem to exist.

A classic example of the muddle we're in comes this weekend from Nick Cohen who writes a piece lamenting the decay of democracy. In this, he puts much of the blame on what he calls "party democracy", asserting that it is the "enemy of representative democracy".

In this, I am of the view that the moment you have to qualify "democracy" with an adjective, it is no longer democracy. Thus, I have long asserted that, as wooden is to leg, representative is to democracy. The same must be said of party democracy – neither can qualify as a meaningful form of democracy.

To that extent, the UK is not and never has been a democracy. Rather like Brexit, which I defined as a process rather than an event, way before anyone else thought of doing so, democracy in the UK has never been a fixed state. It is more a direction of travel, an aspiration to higher things that we will eventually achieve.

Nick Cohen, in his dissertation, relies heavily on historian Robert Saunders to guide him through the matrix, thus displaying the bad habit of many contemporary columnists and journalists in hiding behind the opinions of others instead of asserting his own.

Thus, after a dissection of the demerits of the role of political parties – and especially with reference to the election of our next prime minister – Cohen still manages to confuse himself with the contradictory assertion that, "we are a democracy and power should flow from the people, not from a privileged caste in a private club".

The contradiction, of course, is that unless power flows from the people, we cannot be a democracy and if – as is most definitely the case with the selection of the prime minister – we are in the grip of a party clique, we cannot by definition be a democracy.

It is there that Cohen brings in Saunders to suggest remedies. Either, he says, we return to MPs choosing leaders, and thereby accept that no one can become prime minister without first holding an election, or we move to a presidential system with a directly elected prime minister.

For our money, though, all we're getting is another element of confusion. Like so many, Saunders seems to believe that the process of electing a prime minister somehow turns it into a presidential system.

Yet, as I keep pointing out, presidents are heads of states. Prime ministers are heads of governments. To directly elect prime ministers does not miraculously turn them into presidents. If we have a system of directly elected prime ministers, then that is what we get – a system of direct election, not a presidential system.

As to having our MPs elect prime ministers, this goes back to the electoral college system. And if that has some merits, they are vastly overrated. I cannot see the need (at least in the UK) to interpose another layer between the people and the leader of their government. If the prime minister is to be elected, let the people do it, and cut out the middle man.

But there is more to the process of direct election than simply the selection of a prime minister. With this system comes something we do not have in this country – a proper separation of powers, where MPs are elected to scrutinise government, not to become part of it. A prime minister should not be an MP and neither should ministers. Government should govern, and parliament should scrutinise.

In his attack on the party system, though, Cohen does have a point, where he calls in aid Saunders once more to say that control of politics has passed to unelected and irresponsible members of the respective political parties. Says Saunders, "Boris Johnson or Jeremy Hunt needs the support of about 70,000-80,000 Tory members to become prime minister. That's roughly the size of one parliamentary constituency".

The thing is that political parties are primarily election-fighting machines. Without them, we would be even more prone to the situation where money buys elections, with the rich being the only people who could afford to stand. If one is to reduce the role of parties, therefore, we need to change the way elections work.

For my money, I would abolish general elections altogether, as a means of choosing MPs. The big electoral event should be directed at picking the prime minister. For MPs, I have argued that there should be a means of tying constituency boundaries to those of local authorities, allowing local communities to take control.

It should be for each local community to decide the terms and conditions of the appointment of their MPs, and the money to pay their salaries and expenses should be raised locally rather than paid from central funds.

For accountability purposes, MPs should be required to publish annual reports and (audited) accounts, which would then be subject to a vote of approval from the constituents. If the report or accounts were rejected, then there should be a by-election. Otherwise, the MPs continue to stand for as long as they get affirmative votes.

For by-elections, one possible antidote to party dominance would be to have prospective candidates vetted by an independent (or cross-party) panel, appointed by the local authority. A finite number who pass the selection process might then be awarded grants from public funds, with which to fight their elections, that becoming the absolute spending limit. Party sponsorship should be prohibited and candidates should not be allowed to join political parties.

The intention here is to turn MP elections into local events. The big weakness of the current system is that people tend to vote for the party rather than the person, thus cementing in the dominance of the parties. But when there is no party to vote for, and the election is for an MP rather than for a government, one hopes that the focus would be on the people standing for election.

Here, there is also another element. Currently, many of us are appalled by the low grade of MPs in the Commons, typified by their inability to grasp the technical issues of Brexit – and much else. Yet, if we have learnt anything, it is that the scrutiny of government is a tough and demanding job. Before standing for election, candidates should at least show evidence of an ability to perform the necessary functions.

This, though, cannot be all. In his earlier piece, Saunders argues that other changes are needed. Like the buildings it inhabits, he says, parliament needs urgent renovation. The first priority, he thinks, is a new voting system that more accurately represents the spectrum of national opinion. The second of his changes is to replace the Fixed-Term Parliaments Act, which allows zombie governments to linger on when they can no longer pass their major legislation.

Thirdly, he says that parliament should radically reduce its workload, distributing more of its powers to local and devolved government. Party members are right to prize the immediacy of a smaller, more responsive democracy; but that should be open to all, and not just to a fee-paying minority.

It is interesting how many people think that tinkering with the voting system is an answer to anything - as if other systems have solved the dominance of political parties elsewhere in the world. But Suanders's third idea is very much a core part of The Harrogate Agenda (THA), where we see central government doing far too much. The larger part of the system of government could be devolved to local authorities, with the spending ambitions of local politicians constrained by annual referendums on local authority budgets.

And that was the key lesson we learnt from our work on THA – that piecemeal measures were not enough. We crafted a package of six demands which work together as a whole. The last one, incidentally, was the creation of a constitutional convention with a view to drafting a written constitution. No longer is it safe (not that it ever was) to allow either governments or MPs untrammelled power to decide on constitution issues.

If power is to flow from the people, so that eventually we get closer to being a functional democracy, then the people must be the constitutional authority who decide on the allocation of powers in this land.

Richard North 14/07/2019 link

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