Brexit: a statement of the bleedin' obvious


Now that we have seen it, what is remarkable about the legal advice to the government on the withdrawal agreement is how unremarkable it is.

Readers of this blog are far from being the only ones who would have found the advice telling them very little that they didn't know already, especially in terms of the headline issue – the possibility that the customs union could become a permanent feature of the agreement, rather than the temporary arrangement that the government insists it will be.

We also have confirmed to us that there is no unilateral mechanism for extracting ourselves from the UK-wide customs agreement in the event that we are unable to reach a subsequent agreement. This remains the case even if the parties are still negotiating many years later, and even if the parties believe the talks have clearly broken down and there is no prospect of a future relationship agreement.

In a helpful addendum though, we find Geoffrey Cox (pictured), the author of the advice, warning that the resolution of such a stalemate would have to be "political". This, from the government's own lawyer, is a clear shot across the bows of the noisy claque of lawyers who have sought to "own" the Brexit debate and exclude those whom they regard as lesser mortals from it.

That does at least remind us of an unalterable truth about treaties. Although they are clothed in the word of the law, and the courts are increasingly involved in their administration and interpretation, they remain essentially political instruments – made by politicians and, in the final analysis, to be disposed of by politicians.

With so little new to add, though, it is entertaining to read the "take" of the Irish Times. Sharing almost exactly my view, journalist Cliff Taylor decides that, from the Irish viewpoint, the conclusions of the legal advice are merely "a statement of the obvious".

It is only in the hothouse atmosphere of Westminster they are being treated as "incendiary", although the indignant surprise is largely feigned. Even our MPs cannot be so lacking in political intelligence that they weren't already fully well aware of what the legal advice might say.

That, of course, leaves the only unknown of any consequence – what the MPs are going to do when they come to vote on the package next Tuesday. But here, there are so many permutations that even many MPs probably don't know which lobby they are going to walk through.

One interesting facet of this whole affair is that the general public seem to be more sympathetic to Mrs May's plight (even if it was self-induced) than are the majority of MPs. That could well affect sentiment, after MPs return from their constituencies over the weekend, having sounded out local opinion.

However, despite issues of monumental importance being at stake, with massive long-term consequences for our nation, the bubble, rather typically, is more concerned with the short-term career prospects of the prime minister.

Amongst that, we get Nick Timothy, one of the people least qualified to comment on events, pontificating that, as a result of Dominic Grieve's amendment, "a no-deal Brexit will almost certainly be stopped".

This same lacuna graced the front page of The Times yesterday (print edition). A significant number of politicians and journalists apparently believe that parliament, by way of an amendment to the government motion, can instruct Mrs May to reopen negotiations with Brussels, thereby preventing a "no deal" scenario taking effect.

One really does wonder what it will take to eliminate this mistaken belief from the system. But when the government cannot force the EU to come back to the negotiating table, and where "no deal" is the default option in the event that the withdrawal agreement is not ratified by parliament, it is a matter of astonishment that supposedly sophisticated political actors can get it so wrong.

Since Nick Timothy was Mrs May's trusted adviser at the time of her Lancaster House speech, it is hardly surprising that she sought to remove the UK from the Single Market without understanding the implications of what she had done, or even clearly realising that this is what she had done.

And now this feeble little man asserts that, if the Government loses next Tuesday's vote, we will be left with two likely options: the Norway model, or a second referendum.

It is not possible to be sure precisely what Timothy means by "Norway model" – probably, he has only a vague idea himself. But, if there are any guarantees in this world, one we can rely on is the simple premise that this will not be going to Brussels any time soon. And nor indeed is it at all likely that we will be seeing a referendum launched as a response to a parliamentary rejection of the withdrawal agreement.

The procedure that must be followed is set out in the European Union (Withdrawal) Act 2018 – Section 13 refers. Within 21 sitting days of the agreement being rejected, a minister must make a statement to the House and then, no longer than seven sitting days afterwards, the government must table a motion to the effect that the House has "considered the matter" of the statement.

It is this that can now be amended and possible amendments that are being touted are the demand that the government either go to Brussels with this fabled "Norway model", or that a referendum is launched – although on what has not been specified. One presumes that the People's Vote activists will want to put the May plan to the test.

But if neither of these is a practical proposition, the alternative is that the House either accepts or rejects the motion. Where the former takes us is too early to say, but the latter could lead down the path to a vote of confidence. Again, the outcome of this is hard to call.

Yet another permutation is creeping onto the agenda though, as we see news that "cabinet ministers" are urging Theresa May to delay Tuesday's vote, for fear that a defeat could be so catastrophic that it could bring down the government.

Some MPs, on the other hand, are still harbouring the illusion that they will get the vote, whence they can vote it down in order to send Mrs May back to Brussels to renegotiate the "backstop". That could possibly be another outcome of the government's motion on the statement, although it is yet another which does not lie within the realms of practical politics.

What all this amounts to, therefore, is that no one has any real idea what might happen over the next week or so. However, there is a fixed point looming in Mrs May's diary – the European Council on 13-14 December. The prime minister will be expected to give her fellow European leaders some indication of progress. If she arrives empty-handed, it is likely that she will not be greeted with the greatest of enthusiasm.

But overshadowing the thinking of the "ultras" is the spectre of Brexit being abandoned altogether. Mrs May so far has been consistent in her determination to see Brexit through and, even if the ECJ does formally allow unilateral revocation of the Article 50 notification, she says she has no intention of exercising that option.

However, the continuity remainers have been nothing if not inventive in launching road blocks to the Brexit process. Stopping Brexit is not being ruled out altogether, the fear of which could drive some Tory rebels to support Mrs May's plan.

Yet, in her increasingly desperate efforts to garner support, Mrs May isn't doing herself any favours. Her latest ploy is to promise a "parliamentary lock" – giving MPs a vote before the backstop could be implemented.

If a proposal to introduce unicorn farming would be more credible, it says something of the Brexit process now that the collective fantasies of the political classes are now driving the agenda. And where we go from there is very far from bleedin' obvious.

Richard North 06/12/2018 link

Brexit: contempt all round


It is a little hard to get excited about Speaker Bercow ruling that there is "an arguable case" to make that Mrs May's government is treating parliament with contempt. There is nothing new there at all, as the government quite routinely treats both Houses with contempt – and not without good cause.

In fact, this is more like one of those old-fashioned lovers' triangle, where each treat each other with contempt, both treat the public with contempt, and the public tends to reciprocate, treating the whole damn lot with contempt. And on top of the dung hill is Bercow, whose greatest contempt is for the hard-pressed taxpayers who have to bear his over-generous expenses, right down to his drinks bill and Sky TV package.

One is aware, however, that the term has a technical dimension, in that the government has failed to publish the legal advice available to the cabinet on Brexit when it made its formal decision to back the prime minister's plan, following a humble address ordering its publication.

As always, however, the politicians are playing games – and especially opposition MPs, who see in the government's stance an opportunity to make mischief. There is no yearning desire to improve their knowledge on the withdrawal package. The explanations they need – or as good as they will get - were published yesterday.

What is perhaps significant about this document – and others like it - is how little of substance they are telling us that we don't already know and hadn't worked out on the first day of publication.

The key issue in the draft withdrawal agreement remains the Protocol on Ireland and, within that, the touch-paper item is the backstop and the ability (lack of) to withdraw from it unilaterally in the event that we fail to reach an agreement on the future relationship.

The point I made, up front, was that nothing in the political declaration could lead to any arrangement which would ensure frictionless trade across the border. And, on that basis, the criteria set for the EU to release the UK from the backstop could not be satisfied.

Nevertheless, Attorney General, Geoffrey Cox, would have it that the parties "would be obliged, in good faith, to use their best endeavours to conclude by 31 December 2020 an agreement that supersedes [the backstop]". But the fact remains that there is no satisfactory arrangement that can be agreed, on which basis, the theoretically temporary backstop would effectively become permanent.

Predictably, this has become the point (or the main point) on which as many as 200 MPs may or may not vote against the plan, with many MPs having convinced themselves that a major defeat will force the EU to re-open the negotiations.

Even though the chances of that happening are as close to zero as makes no difference, that hasn't stopped Nick Boles leaping out of the woodwork with the latest iteration of his "Norway Plus" master plan.

With the hubris that only an ego-centric Tory MP could manage, he triumphantly tweeted about hoping:
… that our Norwegian friends have noticed that we have listened to their concerns and adapted the proposal. All the MPs supporting Norway Plus understand it implies indefinite membership of the EFTA pillar of the EEA. We'd be in it for the long haul.
This prompted Chris K-B, a less than impressed observer, to ask Mr Boles, "How on earth did you not realise this from the outset?" Suggesting that our Pete is right about the man, he goes on to say: "I'm a dad to two young children and I have a job, a hard one, and a busy life, and I'm not an EU expert and I'm not very clever, but even I knew this".

It was then left to Chris to express a sentiment that needs to be addressed to the bulk of our MPs, and in as direct a form as possible: "Up your game or fuck off", he says.

In an  article – the only paper which seems to have carried news of the conversion to the indefinite membership – Mr Boles makes great play of having "listened to criticisms". And, when he has modified the proposal to meet them, he proudly declares that he has "not pretended that nothing has changed".

One would not be aware from his article however, that Mr Boles has been very selective in the criticism he has listened to. Despite having been told, unequivocally, that a customs union is unnecessary in the Efta/EEA scheme, he has us staying in the EEA and [re-]joining Efta, yet still "moving into a temporary customs union with the EU until we've agreed new arrangements with the Republic of Ireland and the EU".

Nevertheless, we are not told what those "arrangements" might be, even though nothing in a customs union adds anything to the Efta/EEA option that could not already be provided by the EEA Agreement or which will help maintain frictionless trade.

Not only do we have this incoherence, though, the man has been listening to the naysayers and completely thrown in the towel on free movement. One major downside, he says, is that we would still be bound by the principle of "free movement".

Bizarrely, he then goes on to say that, under the EEA agreement, we would also have the opportunity to exercise an emergency brake on free movement if it causes "serious economic, societal… difficulties". The brake, he adds, "has never been used and we don't know precisely what it would achieve, but it is a legal remedy that we did not have as members of the EU and it would give us additional leverage in a negotiation".

Still mistakenly referring to the "emergency brake", he thus ignores a substantial body of work, including Monograph 1 and Monograph 10, which have been drawn to his attention. This is classic behaviour of the breed – the inbuilt arrogance that has Boles position himself as a superior being who can ignore the work of us "invisible" plebs. He has his own brand of contempt down to a fine art.

The reality is, though, that Mr Boles's efforts are wasted. Even if his work was sound – which it isn't – the EU has made it very clear that it is not prepared to re-open negotiations. Thus, his ambitions of having "Norway Plus" used as a Plan B in the event of Mrs May's plan being rejected by parliament, will come to naught.

Even then, there is further incoherence. Mr Boles would have MPs supporting the withdrawal package, so that the UK could leave the EU next March and "enter" the EEA (despite his saying we're supposed to stay in) and Efta at the end of 2020. This has certainly confused the Mail which has the man setting out a proposal for Britain "to stay in the EEA until a free trade deal is negotiated - effectively to leave the EU but stay in close orbit as a member of the single market".

In the real world, though, we would be committed to Mrs May's package, which includes the political declaration. To shift from this would require a major change of direction and a willingness of the EU to abandon its current plans for a future relationship. That is not likely to happen.

Probably, the only workable scenario for an agreed settlement is to run with the withdrawal package as it stands, negotiating a comprehensive trade agreement to take effect at the end of the transition period. This would have to have a strong element of regulatory alignment, amounting to a "shadow EEA", effectively the EEA Agreement in all but name.

Only after that, could we then seek to transform this agreement into a fully-fledged Efta/EEA membership, which might take three or more years to negotiate. By that time, of course, everyone will have forgotten about "Norway Plus", while Mr Boles will have found something else to play with. And, as it has been since 2014, Flexcit will still be there.

Richard North 04/12/2018 link

Brexit: that sinking feeling


There was a time once when Ukip played an important part in the process of what became Brexit. But once the party had been abandoned by Farage in the wake of the referendum, as the former leader pursued his own career, it was eventually taken over by Gerard Batten – and only had one place to go.

And now, if we're to take the word of The Sunday Telegraph, the party has all but arrived. Not only has Batten appointed Tommy Robinson as his personal advisor, it appears that there is another extremely suspect member of his retinue.

This is Daniel Thomas, 29, who appears to have been heavily involved in the organisation of a "Brexit Betrayal" march and rally to be held in London next weekend. Yet this is a man who has a conviction for attempted kidnap, and has served a jail sentence for the offence.

At the rally, Robinson is expected to speak, which – with the more general links to Ukip – means that no self-respecting "leaver" will go near the event. It will thus reach only a tiny fraction of attendance claimed by the recent "People's Vote" march.

This is one of many ways in which Ukip is letting down the Eurosceptic movement – not that a successful march would have been any help to the cause, given its "leave now" obsession. The physical collapse merely reflects the intellectual deterioration of the party. It is a long, long time since it had anything coherent to offer.

It is all very well, therefore, for Farage then to whinge to the national executive council, urging it to pass a motion of no confidence in Batten's leadership. But not only did Farage desert the party, leaving it open to a take-over, his failure to bring forward suitable successors has left the leadership vacuum which Batten is now filling.

Furthermore, it was Farage who progressively weakened the NEC, with successive changes to the party constitution, leaving it ill-equipped to bring an errant leader to book. Now a toothless cypher, it is effectively a bystander at the death throes of an organisation that once had the mighty Conservative Party running scared.

Another organisation to take a dive this weekend is the Institute of Economic Affairs (IEA). Its star spokesman, Shanker "Snake Oil" Singham is already on the back foot, complaining of being "deeply frustrated" because the prime minister was ignoring his proposals, and now his parent organisation has had to suffer the ultimate humiliation.

It has been forced by the Charity Commission to remove Singham's work from its website and to cease promoting it. This was the infamous "Plan A+", subtitled "Creating a prosperous post-exit UK", an error-strewn 150-pages published in September that constituted Singham's bid for fame and fortune as author of the plan that took the UK out of the EU.

Now, as it stands, Flexcit is still there, unchallenged, while the only place you can get the con artist's oeuvre in the public domain is on the Wayback Machine.

Slapping down the IEA, the Charity Commission decided that the contents were "not sufficiently balanced and neutral as required of an educational charity under charity law". It also found that the IEA "had been undertaking political activity not in line with the charity's purposes".

Ignoring the complaints from Neil Record, chairman of the IEA board of trustees, David Holdsworth, the Commission's deputy chief executive, said: "Charitable think-tanks are first and foremost charities and need to behave as such. It is disappointing that the trustees of some charitable think-tanks appear not to fully understand their duties".

Somebody else getting that sinking feeling this weekend must be no less than Theresa May. When (or if) she reads The Sunday Times, she will find it publishing leaked details of attorney-general Geoffrey Cox's legal advice on the draft withdrawal agreement, which the government has been so reluctant to release.

To nobody's great surprise, the advice contains "a stark passage" that makes clear the UK could end up locked in the "backstop". In a letter to cabinet ministers last month Cox thus declared: "The protocol would endure indefinitely". The only way we could escape it he says, is to sign a new trade deal, which could take years. But he also warned that the UK could remain trapped if those talks collapsed.

This is more or less what I wrote the day after publication of the draft agreement, pointing out that it was most unlikely that the UK could agree a free trade area which would deliver frictionless trade across the Irish border. "As the agreement stands", I wrote, "it is possible to see a scenario where the UK is locked in perpetuity into a customs union with the EU".

A week later, it is nice to have the attorney-general confirm what we managed to work out within hours of publication of the draft. But the details, we are told, "will enrage Eurosceptics and are likely to harden opposition to the deal". Unsurprisingly, a cabinet source says: "The legal advice is very bad, which is why they don't want anyone to see it".

With only nine days to save her "historic" Brexit deal, with 100 or more Tory MPs apparently determined to sabotage it, Mrs May most certainly should have gone to the Brexiteer's equivalent of Specsavers – the Efta/EEA option.

Booker returns to that theme in his column today – which the paper hasn't yet published, despite a full house of all its other columnists. When the Sunday Telegraph gets round to putting it online, readers will find it saying that after 20 months of negotiations Theresa May can only now ask Parliament to make a seemingly impossible choice.

That choice is either to support a deal largely dictated by the EU – the nature of which the Sunday Times has just confirmed, or to leave with "no deal". The first is so poor that even the Treasury can only present it as an economic disaster. But the second, the Treasury computer model guesses, would be an even worse disaster.

It was unsurprising, therefore, that in all the resulting confusion, we last week saw a strange little cross-party alliance, including Tory and Labour MPs, Northern Ireland's Arlene Foster and various others, forlornly reviving as a "Plan B".

Unlike Mr Singham's now invisible "Plan A+", this is "Norway Plus", their version of a Norway option which, in its original form, retained access to the single market, with us re-joining Efta and thus remaining in the wider EEA.

While the MPs supporting the bastardised version which has them wanting to take us into an entirely unnecessary customs union, there are those of us who, after prolonged study, have been urging a proper "Norway option" since well before the referendum as the only rational solution to most of the problems now becoming so obvious.

But what is so striking is that none of these belated converts to the idea, let alone those who have been only too quick to ridicule it, have been able fully to grasp what this could have brought us.

In particular, as Efta members, it would, surprisingly, have given us more influence over shaping EU trade rules than we had previously, despite the unending mantra spewing from both politicians and media that arrangement turns us into a "rule taker".

Scarcely any MP has managed to get to grips with Article 112 of the EEA Agreement, under which we would have been free to exercise selective control over immigration from the EU.

And not one politician or journalist has mentioned the additional bilateral agreements (Norway has around 50 of them) with the EU that we would need, to cover such issues as aviation and VAT. Only with these and substantial amendments to the EEA Agreement could we secure virtually "frictionless" access to by far our largest export market, and solve the Irish border problem.

Properly understood and explained, all this could have united the nation as by far the least damaging option available. But because Mrs May was too much under the spell of her Brexiteers, this was what she rejected in her Lancaster House speech; although it was part of the reason why Sir Ivan Rogers, our much more clued-up ambassador to the EU resigned just before that speech, warning darkly of "muddled and ill-informed thinking" at the top.

And that is why Mrs May is stumbling doggedly on towards the utter chaos we see today, threatening to land us with by far the gravest economic political and social crisis our country has faced since World War Two. The tragedy is that this was only too easily avoidable.

That this could even lead us to civil disturbance was the theme of yesterday's post (and a Twitter thread), which had what Pete calls "FBPEtards" spitting with rage and accusing us both of inciting violence - and getting Pete banned on Twitter for a week.

Not a single complaint was heard, however, when the Guardian aired the same concerns. The sinking feeling thus spreads as we confront the growing antagonism and faux outrage from people with demonstrably limited reading skills. There feels to be no end of what seems to be a bottomless pit.

Richard North 02/12/2018 link

Brexit: countdown to disorder


There was a time when we would have been pleased to see a headline declaring: "Eight Cabinet ministers hold secret talks about 'pivoting' to Norway if PM's Brexit deal is voted down", even if the EU has ruled out further talks.

Unfortunately, though, it is the Telegraph which is running the story and its idea of the Norway option is the plan "being championed by Nick Boles, a former Tory minister". In other words, it is not the Norway option at all. 

It is perhaps also significant that, while those who have become familiar with the option now label it the "Efta/EEA option", while the newspapers still call it by its earlier, less accurate title. But then most of the media is so far behind curve that it's hardly worth bothering with them – the Telegraph advising us that, "under the Norway scenario the UK would retain access to the Single Market after Brexit but be forced to accept continued free movement".

Sadly, that is also the view of the prime minister, who thereby claims that it would not deliver what people voted for in the EU referendum. And, with that, she has refused once again to consider it – not that there is any value in her so doing for the moment. We have to play out the May plan to the bitter end, before we can even start to think of something else.

All we can take from this, therefore, is fresh evidence of the unending capability of the political classes – from top to bottom – to mess up a good idea, or to fail comprehensively even to understand it.

If I hadn't already remarked on it numerous times, I might now be tempted to write a blogpost on the intellectual poverty of our politicians, perhaps spurred on by a comment from Stephen Kinnock who argued that the Telegraph's James Rothwell had "extensively researched" the Efta/EEA option.

Yet, this is the journalist who writes of Norway that it "is not an EU member state but pays millions into the European budget each year and follows EU regulations - without having a say in their drafting - in exchange for market access".

Thus revealed is the level of sheer, pig ignorance we're getting from a leading national newspaper, only for the man responsible to be cited as an authority by an MP. That is a reflection of how far down the rabbit hole we have gone, although I have long observed that perhaps the only people left in the world who believe what they read in the papers are politicians.

As for Rothwell, I rather unkindly observed that his attempts to instruct us on the intricacies of Efta/EEA membership was rather like watching a two-year-old gravely instruct his mummy on how to change a nappy – in practical terms a complete waste of time, but pure comedy gold.

The problem though, is the players in such dramas are so bottled up in their own little bubbles, and so isolated from the real world, that they have no idea how awful they are. 

As long as the politicians and media can indulge themselves in their never-ending ritual of mutual grooming – with the clapping seals in the background – they never need to step outside their cosy isolation and confront their critics. We simply do not exist, having acquired the same patina of invisibility that is conferred upon elephants when they take up residence in diverse rooms.

One journalist and author who is clearly in his own bubble – divorced from the consequences of his own rhetoric – is Will Black who took it upon himself to declare on Twitter yesterday that: "For many people, stopping Brexit will be the UK's biggest achievement since defeating the Nazis", claiming: "We are closer to stopping Brexit than we were to defeating Hitler in 1944".

In this case, the infelicitous use of language and the immoderate assertions brought from me the response: "If you actually get close to stopping Brexit (not that you will), you will find you have a bigger battle on your hands than the nation had with Hitler. You will spark a civil war, the likes of which will rip the country apart".

This is a view that can be found elsewhere but, nevertheless, my post sparked the nearest thing I've been to a "Twitter storm". My response was to publish a short thread, explaining my concerns about the possibilities of war. There are, I noted, many levels of war, from the full-blooded heavy metal type to the low-grade insurrection amounting to chronic civil disobedience and occasional outbreaks of violence.

The latter can be a variation of the "four block war", a phenomenon noted in Iraq where, in one city block there was peace and normality with shoppers in the streets, while four blocks away, there was a raging gunfight. Moving on from total war, conflict can be a highly localised event, shifting from place to place with bewildering rapidity.

Not infrequently, the cause is the breakdown of the social compact. And in this country where we have been largely demilitarised and do not have ready access to high volumes of firearms, we are more likely to see low-grade conflict. However, it can escalate, especially if people develop IED-making skills. Even at a low-level, conflict can still be dangerous.

A crucial point about such conflict is that it does not require large numbers to pursue it. At the height of the Troubles in Northern Ireland, it was estimated that active members of the Provisional IRA in Belfast numbered only hundreds. But once the social compact fractures, there is created Mao's "fish in the sea" environment where anti-state activists, with the tacit support of their communities, can operate with impunity.

Furthermore, a conflict may start small, with only sporadic violence – indistinguishable from background civil disorder. I noted in my book, Ministry of Defeat, that it took the British Army occupying Southern Iraq in 2003 nearly six months to realise it had an insurgency on its hands, even in the face of sustained attacks.

But what fuels the disorder is over-reaction by the state or neglect of justified grievances – or both. These can easily inflame matters and trigger escalation. With a high-density population of 60 million in the UK, it would not be easy to regain control.

What experience has also shown is that, even in an unpractised population, insurgency skills - such as bomb-making – can be quickly acquired. Information is readily available on the internet if you know where to look, and cannot be suppressed. Materials are commercially available and bomb-placers can range from children to old people. There is no real physical defence against the determined insurgent who has nothing to lose.

For its defences, therefore, society (and the state) relies on violent activity being regarded as the unacceptable exception. As long as the government is regarded as legitimate and there is strong public support for the security services, people will cooperate in efforts to root out violence. But once you take away the legitimacy and erode the support, you have your "war".

That is why it is never untoward to warn about civil war. We are always closer than most people think, with society relying on a skein of consent which is fragile and capable of being broken. People who dismiss the prospect out of hand have clearly never studied history and yet, there were those on the Twitter thread who chose to see in the warnings an overt threat – which is simply not there except in their imaginations.

Already, public authorities have expressed concern about the possible breakdown of law and order in the event of a "no deal" Brexit, but such is the fragile state of our nation, it is no great stretch to ruminate over the possibility of a violent backlash, should a government try to take us back into the EU, without due process.

A "perfect storm" scenario might arise should the nation be forced into a "no deal" scenario, triggering civil unrest, whence a panicked government might seek re-entry to the EU. Isolated food riots could spread out of control and rip into something far bigger and potentially far more disruptive.

It also goes without saying that prominent political activists in the "remain" camp would be obvious targets for mob violence. With the Army thin on the ground and the police heavily stretched, they would be hard-put to protect everyone. It could get very ugly.

On the bright side though, if there is one thing on which Mrs May has been totally consistent, it is in her determination to see Brexit through to the (bitter) end. That what she has negotiated may not feel too much like Brexit, but the path she is currently taking leads directly to a "no deal" outcome. By the end of March, we expect to be out of the EU.

The fact that there are many people disconcerted by this possibility is a given. It is equally a given that we have a fractured nation and that nothing, at present, is having anything that could be described as a healing effect. And I would not be alone in my suspicions that the situation could get worse. 

Richard North 01/12/2018 link

Brexit: it's a strange old world


According to this morning's edition of The Times, "European leaders" are prepared to offer Britain a three-month extension to Article 50 to prevent parliamentary deadlock triggering a no-deal Brexit.

The paper tells us that they would agree to extend Britain's membership until July to allow time for either a second referendum or to agree a "Norway-style soft Brexit" – albeit only if parliament had come to a clear conclusion about the type of future relationship it wanted.

Bearing in mind the propensity of the legacy media to invent stories, only for them to fade into obscurity within days (and sometimes hours), one must take this latest report with a pinch of salt. This is more so when, as always, there is no named source, and not even a "senior" source. But, if what one of these fabulous creatures tells us is close to being true, then we have serious cause to worry.

That source "made clear" that Europe would also welcome a softer Brexit under which Britain would join Norway in Efta and sign up to a customs union with the EU. They said it could be a "game changer", adding: "Norway plus a customs union would be viewed positively".

The very incoherence of an Efta member being in a customs union is something which makes me wonder whether this "source" is entirely on the ball - although Barnier has been known to confuse the issue, and does not always speak the whole truth.

For instance, in a speech to the European Economic and Social Committee in Brussels in July 2017, he argued that neither the internal market without the customs union – in other words the regime of the EEA for Norway, for Iceland, for Liechtenstein – nor a customs union agreement without the internal market – as in the case of Turkey – allows the free movement of goods.

He is right, of course, about the customs union, but it has long been the case since customs formalities involved physical checks at a border. But such was his tenuous grip on reality that he argued that the Efta/EEA arrangement "still entails a system of procedures and customs controls, among other things in order to check the preferential rules of origin (ROO)", while the customs union "implies a system of procedures and customs controls, including controls to check compliance with European standards".

In fact, most of the checks at the Swedish/Norway border involve duty on tobacco or alcohol, processing the limited number of tariffs (mainly to do with agricultural goods and fisheries products), and VAT. In the more highly integrated version of the EEA agreement that is proposed for the UK, none of these issues would have a measurable effect on cross-border trade with the EU.

It is, for instance, the case that the EEA agreement already makes provision for tariff-free trade (if the parties desire that to be the case), but to ensure frictionless trade – and especially on the Irish border – there would have to be a comprehensive agreement on VAT. And that lies outside both the customs union and the EEA Agreement.

However, such is the fog of incomprehension that afflicts our political and media classes, that they have fixed upon the requirement for participation in the single market and a customs union as necessary to achieve frictionless trade.

This has even been behind transforming the so-called benign and wholly acceptable Norway option into the bastardised version known by its creators as "Norway Plus", the "plus" being the addition of a custom union.

By any measure, though, single market plus a customs union (and with it the common commercial policy, requiring derogation from the free trade aspects of Efta) is not Brexit.

This is effectively, non-voting membership of the EU, a trap every bit as bad as Mrs May's Withdrawal Agreement, with its Irish protocol. Advocates of "Norway Plus", including Stephen Kinnock, have been open to the accusation of mounting a "false flag" operation.

Whether that would even get as far as being negotiated with the EU remains to be seen but, if anything in that form was adopted, it would amount to an abject betrayal of the referendum vote, especially as the EU is adamant that, come what may, the Withdrawal Agreement stands.

Nor indeed would a three month extension of the Article 50 period be enough to mount a credible referendum – if there could even be agreement on what the referendum should be about, when campaigners are at war with themselves over tactics.

Obviously, if any government was unwise enough to re-run the 2016 referendum, and the majority confirmed their desire to leave, then no one is any further forward. On the other hand, if there is to be a vote on the deal, rejection of that would catapult us in the direction of a "no deal".

For the moment though, any such developments are unsupported speculation – and could very well remain just that. The issue that we have to confront in the real world is whether Parliament will reject Mrs May's deal – with or without the Labour amendment.

In the current febrile atmosphere, there is every indication that the deal will be voted down, but how will MPs behave if Mrs May then calls a vote of confidence? Since Labour is not likely to be able to form an alternative government (which it would be allowed to attempt under the fixed term rules), the outcome of a lost vote would be a general election.

That would actually leave the EU in an interesting position. It need not stand idly by – it could be making its own arrangements for ratification, but it will have to wait longer to hear from the UK government as to whether the deal is approved. But then, would the EU be prepared to re-open negotiations with the new government?

Presumably, it might be tempted to deal with an incoming Labour government which currently seems to want the magic mushroom option of the single market and a customs union.

But then, would the electorate vote for a party which was determined to run roughshod over the referendum? Would an election even be about Brexit, or would the politicians attempt to make it about domestic issues, with the NHS high on the list?

In what then must be an alarming situation for business, the element of certainty they thought they might have enjoyed with Mrs May finalising the Withdrawal Agreement has not materialised. If anyone was to make predictions at this point, they would find it hard to exclude the "no deal" scenario.

This is certainly the pitch being made by Mrs May, as she argues for "my way or no way". Warning of said "practical consequences" should Parliament reject her deal, she has hinted darkly that she will step up "no deal" preparations. At the same time, she has point-blank refused to entertain the idea of extending the Article 50 period. Doing that, she says, re-opens the negotiations. "At that point, frankly, the deal can go in any direction".

In a sort of "you couldn't make it up" moment, the Telegraph gives pride of place to Jacob Rees-Mogg, declaring that Mrs May's broken promises and Mark Carney's wild claims are "damaging people's faith in democracy".

It must be a very long time since young Jacob looked in a mirror, as he fails to recall that it is his shenanigans, above all else, which have blocked the one outcome which would have probably been supported by the largest number of people, remainers and leavers – the Efta/EEA option.

As for Carney's intervention, only the "ultras" have kept in place their ideologically-driven view that "no deal" is a pain-free option. If the UK gets caught in a spiral of negative feedback, the damage to the UK's GDP could be far worse than the Bank of England is suggesting.

It is, therefore, Mr Rees-Mogg and his friends who have driven us to the brink – even if they have been aided and abetted by a weak prime minister who lacked the courage and the depth to take them on. Incompetence is writ through the establishment, like letters through seaside rock. The "great and the good" have made a complete hash of Brexit.

The last laugh, however, must go to Ellvena Graham, president of the Northern Ireland Chamber of Commerce. With almost child-like naivety, she declares that opponents of Mrs May's deal "should outline their alternative".

Of course, she is addressing her comments to the "great and the good", the self-same people who have made such a mess of Brexit. The "little people" don't count. We are invisible. And then Rees-Mogg bitches about democracy. It's a strange old world, as a lady once said. I wonder what she would think of this mess (illustrated).

Richard North 30/11/2018 link

Brexit: a loss of nerve


I had been warned a little time ago that the Treasury officials working on the long-term economic analysis of Brexit were twenty-something brat packers with a knowledge of the Efta/EEA option which matched that of Simon Carswell.

And so it turns out to be, with these children declaring that: "the EEA-type scenario would mean staying in the Single Market, implementing new EU legislation automatically and in its entirety, and continued free movement of people". And, as if that was not bad enough, they go on to tell us that the EEA-type scenario "would not meet the Government's commitments to ensure no hard border between Northern Ireland and Ireland".

Strictly speaking. Of course, the EEA Agreement alone would not solve the Irish question. To afford frictionless trade, we would also need a package of bilateral agreements with the EU, along the lines negotiated by Norway – in some instances going much further.

Additionally, we would need to modify the Agreement, with country-specific protocols (and a number of amendments in the Annexes). With those, we would not only have a solution to Ireland but would be able to exercise greater control over freedom of movement.

Thus, to aver that the Treasury analysis is inadequate is not unreasonable. But one could go a lot further and assert that it was fundamentally misleading. Specifically, it fails to take into account policy developments which could substantially enhance the UK's trading position.

Only to a very limited extent does the analysis even recognise this as a possibility. The authors write that modelling cannot predict how the UK economy will perform in the future, "not least because the UK's exit from the EU will be just one of a number of factors impacting economic growth". To that, they add: "No modelling can completely capture the complex ways in which the UK economy could be affected by exiting the EU, particularly given the unprecedented circumstances of the UK's departure".

On that basis, when we look at the headline claim made by Philip Hammond that the UK will be worse off "in pure economic terms" under all possible Brexit outcomes, it is easy to argue that the chancellor is being more than a little speculative – and erring on the side of pessimism.

Here, one has to accept that the whole point of Brexit was to open up a range of opportunities that either didn't exist or could not be exploited while we were members of the European Union. Thus, one would want to see in any analysis an acknowledgement, at the very least, that there is a possibility of benign consequences arising from post-Brexit policies that the government might adopt.

By that measure, none of the conclusions drawn by the Treasury, on the basis of their modelling, are at all valid in the longer term. The exit strategies that they use for their modelling are precisely that – exit strategies. They do not define long-term policy and to use them for that purpose is to fail to understand that they may be just platforms, from which we can develop and expand our own interests.

This is the point that Nick Boles and his fellow travellers have completely missed in their current advocacy of "indeterminate" membership of Efta, with continued participation in the EEA. In our Flexcit plan, it was never intended that these states should be the final objectives. Rather, as an Efta state working from inside the EEA, the idea was to seek improvements which would benefit the UK and other trading nations.

The first and most obvious move would be to encourage Switzerland to re-join the EEA. Although the Swiss rejected membership in a referendum, the deal they ended up with in many ways is inferior to that which the other three member states enjoy.

However, a significant barrier to Swiss entry is the lack of co-decision for new legislative measures, But since bringing back Switzerland into the fold would be to the advantage of the EU, the UK might be able to convince all the parties to accept new voting arrangements.

Next on the list might be to bring Turkey into the EEA. It is very clear that there is no longer any enthusiasm either in the EU or Turkey for full membership, but there would be huge benefits in a deeper trading agreement. The EEA Agreement would provide the ideal template.

It is unlikely though that Turkish entry to what is a Nordic-Alpine club – the normal precursor to non-EU entry – would be acceptable to the Efta states. We would, therefore, have to reform the EEA in order to expand it from its current status to an agreement of wider scope. That might mean asking UNECE to take on the role of managing the agreement for the non-EU states, in place of the Efta secretariat.

Then, the larger EEA could invite more members – the former Yugoslav states which are not yet in the EU could be prime candidates. And states with existing agreements with the EU, such as the Ukraine, might be brought into the fold, expanding the scope of the Single Market.

Once UNECE is managing affairs on behalf of non-EU EEA members, and already acting for both them and EU Member States on certain legislative issues - such as vehicle construction standards, inland waterways, environmental issues and marketing standards for agricultural produce - it could then be asked to take responsibility for other areas of the Single Market acquis. Relatively uncontentious issues such as waste management spring to mind.

Within the organisation there already exists WP.6 - the Working Party on Regulatory Cooperation and Standardisation Policies. This has the administrative infrastructure and capabilities to initiate, develop and then promulgate standards on a wide range of issues. It is performing tasks once reserved for Brussels which the EU is increasingly willing to transfer to the larger forum, enabling it to focus on its political agenda.

As is currently the practice, UNECE members would then implement standards as legislation in their own territories, with the European Commission acting on behalf of EU Member States in producing harmonised regulation for them, within the framework of its own regulatory "ecosystem".

In taking advantage of the wider scope afforded, one should recall that the United States and Canada are also members of UNECE. There is no United Nations economic commission for North America so the European body serves this area as well. Thus, when looking to expand trade relationships between Europe and North America, UNECE is an obvious and trusted forum.

Here, rather than seeking limited gains through free trade agreements UNECE is well-positioned to broker global, sector-specific agreements such as the UN's Globally Harmonized System of Classification and Labelling of Chemicals (GHS). Now used as the template for EU legislation, this type of global instrument is where the real gains in trade facilitation are to be made.

Even limited developments in the harmonisation of pharmaceutical standards could deliver billions of dollars in savings to the world trading community, while adoption by the United States of such initiatives as the UNECE common global standard for passenger car tyre standards – adopted by the EU as a General Safety Regulation - would also be worth billions.

The point has been made that there is far more value in such global agreements than there is through the limited process of concluding bilateral free trade agreements. This is where trading nations – and especially a post-Brexit UK – needs to be focusing its attention, made possible by its withdrawal from the EU.

The overarching conclusion to draw from this is that we should not be treating Brexit as a process of adopting one or other of an existing range of options. Rather, we should be looking forward to using our new status to expand trading opportunities, to innovate and to act on a global scale.

If all the Treasury can do is trudge wearily over well-worn territory, it is only to be expected that it will find that Brexit involves a cost to the nation and a loss of GDP. One can understand the findings in respect of a "no deal" scenario and, if anything, the parallel report by the Bank of England - based on its own modelling - understates the dangers of this outcome.

But if the more positive view is taken, it can be conceded that there are real opportunities for the UK to drive a renaissance of global trade, with potentially huge economic benefits. It cannot be the case that the only possible long-term consequences of Brexit are negative.

What we are seeing, therefore, in this latest tranche of modelling is a failure of imagination and a loss of nerve – not only in Mr Hammond's department but in the wider political community. The collective has shown itself unable to look at the bigger picture and cannot see that there are opportunities afforded by Brexit.

When the media also is unable to lift its sights above its obsession with the narrow, soap opera drama of Westminster, it is hardly surprising that the public is unenthused. If ever there was a time for political vision, it is now. The big question is whether there is anyone of stature capable of stepping up to the plate.

Richard North 29/11/2018 link

Brexit: snakes and ladders


Now the withdrawal agreement has been endorsed by the European Council, and the political declaration approved (the latter not needing ratification), the political classes are beginning to wake up to the enormity of disaster brought about by Mrs May's incompetence.

Any idea that the EU and its Member States are going to give us an easy ride over negotiations on the future relationship has been dispelled by French president Macron linking the UK's position on fishing rights with progress on a wider trade deal, leaving us "trapped in a customs union" after Brexit unless Downing Street offers European fishermen full access to British waters.

As an aside, though, anybody who was expecting fishing to be resolved quickly and easily quite obviously hasn't been keeping up. As I pointed out last April, the Commission published a Notice to Stakeholders which set out some home truths on where we stand on commercial fishing in a post-Brexit world.

Crucially, as a third country (and that applies with or without a deal), access to UK waters by vessels carrying EU Member States flags comes under the aegis of Regulation (EU) 2017/2403". On the other hand. UK-flagged boats wishing to land catches in EU Member State ports fall foul of Regulation (EC) No 1005/2008. And then, of course, there is Council Regulation (EU) 2017/2403.

In short, this means that a post-Brexit UK will get direct control over its waters, but it will not be able to do deals with other EU Member States. UK vessels will not be able to land fish in EU Member State Ports and we will not be able to export fish to the EU without submitting to the Commission for its approval of a fisheries management plan.

Furthermore, if we want to invite EU boats to fish in UK waters – whether on a reciprocal basis or through other schemes, an EU-approved management plan must also be in force, rather limiting our scope to develop an independent fisheries policy.

Then there is also the matter that the bulk of UK fishing quotas are owned by foreign enterprises, while we will also have to take into account any acquired rights, when allocating fishing effort.

These points alone, in one small sector of the UK economy, will provide endless opportunities for prolonged squabbles in Brussels. And if the goodwill is not there, one can very easily see the negotiations running into injury time and left unresolved by the end of even an extended transition period.

Since EU Member State leaders are well aware of the UK's weaknesses, it will need a brave man (or woman) to be confident that the talks will run smoothly, to time, ending with a balanced agreement that will enable us to escape the grip of the "backstop".

It is doubtless the dawning realisation that we have been so heavily shafted which has sundry politicians belatedly scurrying around looking for a magic "Plan B" which will get themselves off the hook on which they have allowed themselves to become impaled.

High on that list is the Efta/EEA, aka "Norway" option. The latest convert is the DUP's Arlene Foster, who is now speaking warmly of its adoption UK-wide. She sees in it a way of preventing Northern Ireland being treated differently from the mainland, thus providing an alternative to the "backstop". 

Several DUP "insiders" are involved in the "conversation", with dark rumours of chancellor Philip Hammond working up details with his Treasury colleagues in order to show how much better the option is compared with Mrs May's deal.

Oddly enough, the option was not brought up when foreign secretary Jeremy Hunt was interviewed by Andrew Marr yesterday, even though Marr – when interviewing Arlene Foster - had referred to the so-called "gang of five" Cabinet ministers who are also talking about it.

This has the issue-illiterate Tom Newton Dunn burbling in The Sun about Amber Rudd and Michael Gove plus Labour rebels forming a "cross-Brexit alliance" to push for membership of Efta. The idiot Dunn tells us that the four current members of Efta are Switzerland, Norway, Liechtenstein and Iceland and, under this new "washes whiter" idea - dubbed "Norway Plus" – the UK is supposed to join Efta "to maintain economic stability for a temporary period of a few years while the Government negotiates a full free trade deal from a stronger position".

Only much further down in the story do we see a reference to June of this year, when 76 Labour MPs voted in a failed Commons bid for Britain to remain in the EEA "which Efta membership delivers". One must assume, therefore, that references to "Efta" are also taken to mean Efta/EEA (which will be without Switzerland).

This would now seem that additional numbers are falling behind the failed plan championed by Tory MP Nick Boles – already rejected by Norway – just as he himself has abandoned it. He has graduated to the view that we will need to sign up to the withdrawal agreement and then "make an indefinite not temporary commitment to the EEA in the Political Declaration". Once we are in Efta/EEA, he says, the backstop will fall away.

Although some might think this is progress, that actually drags us back to about six years ago when we concluded that this was not a satisfactory solution, not least because it would not attract sufficient support. The essential point is that the EEA Agreement is fundamentally flawed, with the promised right of co-decision having been removed by Jacques Delors during the ten-year negotiations, a move which nearly scuppered the talks and, to this day, renders the Agreement sub-optimal.

Although the Efta/EEA option is the least-worst solution for a managed Brexit, without co-decision it is not a long-term sustainable solution. Thus, having gone round the houses, Nick Boles is back where we were six years ago. He appears to have no idea of what's involved and is merely attracting support like flies to rotting meat. His supporters have no more idea of what they are embracing than he does.

This is like playing snakes and ladders on a grand scale. The moment we make any progress with Efta/EEA, up pops another "snake" and takes us back to where we started. There are now multiple latter-day variations on the go, and none of them have been properly thought out.

It sometimes seems as if politicians can't resist the temptation to re-invent the wheel, seeking to take "ownership" of it, not dissimilar to animals marking boundaries. Instead of building on existing work, each time the option comes up we end up starting from scratch, repeating the same errors.

And it's not as if the latter-day inventors are even talking to each other. Each creator is nurturing his own "child" in grand isolation, expecting everybody else to bow down and adore their "brilliance" - until, of course, the next one comes along and we all have to start again.

What is so important about this is that the Efta/EEA option cannot be regarded as a "quick fix", and nor is it acceptable to use it as a temporary parking place while we look for something better. It is an intolerable arrogance to expect existing Efta members to accept this.

Looking at the broader issues, we were looking in detail at the Efta/EEA option about six years ago. When it came to writing Flexcit, we concluded that the option had to be treated as an interim solution, but on a 10-20 year timescale. We anticipated working with Efta members to widen out the Agreement to create a genuine, pan-European trade area. We aimed to free it from the grip of Brussels and have it managed by Geneva-based UNECE, with co-decision at its heart.

This was a considered view that has gained considerable traction, not least because it builds on the process of globalisation which is already well-advanced and which has the EU already ceding much of its legislative agenda to UNECE. The reform agenda gives the Efta states an incentive to admit the UK to its ranks, whence they benefit from its additional leverage.

Understandably, we take a protective view of this scheme but, in the final analysis, it doesn't matter who makes it work. Flexcit was crowdsourced and Efta/EEA belongs to no one. What does matter is we need to see an end to the succession of people trying to re-invent the wheel and making a mess of it, instead of building on what is already there.

For any Efta/EEA option to succeed, it must be intellectually coherent, practical, attractive to existing Efta states and be set in a sensible negotiating timeframe. It is wholly unrealistic to expect the package to be negotiated in less than 2-3 years and even then it will have to be augmented by a number of bilateral EU-UK treaties. In these, an agreement on VAT will have to feature prominently. 

Clumsy handling of a half-baked version will engender unnecessary resistance and do more harm than good. Yet, all we are seeing is a succession of politicians making baby steps, none of them capable of getting past the starting point and developing the basic idea into a workable scheme.

A huge amount of work has been done on validating the Efta/EEA option, and particularly in respect of freedom of movement and the role of Article 112. If the selfish prima donnas can't get their egos in check and take advantage of it, they stand to destroy the very thing they are purporting to promote.

This is too important for playing games. We need to leave the "snakes and ladders" board in the nursery.

Richard North 26/11/2018 link

Brexit: advantage incompetence


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Richard North 24/11/2018 link

Brexit: a vassal's charter


In a crowded chamber in the Commons yesterday, Theresa May told MPs: "the draft text that we have agreed with the Commission is a good deal for our country and for our partners in the EU. It honours the vote of the British people by taking back control of our borders, our laws and our money, while protecting jobs, security and the integrity of our precious United Kingdom".

And so it comes to pass that our prime minister is reduced to the status of a common liar. By any measure – other than that of Mrs May and her cohorts - the draft withdrawal agreement is a very bad deal. Not in any way does it honour the vote of the peoples of the United Kingdom – a group which our prime minister consistently fails to address, as she refers to Britain and not even Great Britain.

Unabashed, she delivered much the same mendacious message standing outside No.10 Downing Street (pictured), announcing that approval of the whole package, which now includes the political declaration, "is within our grasp".

Attempting to adopt stern, Churchillian tones, she concluded by declaring that she was "determined to deliver" this fabulous agreement. But, if she intended to inspire, she did not. All she managed to do was sound faintly ridiculous.

What isn't ridiculous is that political declaration. A mere 36 pages of double-spaced text (including the cover page), it was agreed yesterday afternoon by the EU-UK negotiating teams. But, if the sudden "breakthrough" was theatre, it wasn't very good value. They didn't even spin it out until Saturday.

The substance of this thing is very much as one might expect – a template for a comprehensive free trade agreement that belies Mrs May's suggestion that she has somehow evaded the EU's attempts to confine the UK to the binary choice of Norway or Canada.

Mrs May argues that the political declaration recognises that there is a spectrum, with the extent of our commitments taken into account in deciding the level of checks and controls. But, in more general terms, she had a binary choice between a multilateral or a bilateral agreement and she's chosen the latter. The rest is detail. The best we can even aspire to is a variation of the Canada agreement, with some tweaks and some additions.

As always – but more so here – the devil is in the detail, and there's an awful lot of it, enough to keep many teams of negotiators busy for many years. Perhaps, therefore, the most significant part of the declaration is Article 144, towards the very end.

With the intention of concluding an agreement that can come into force by the end of 2020 (Article 138), and working within the framework of Article 218 (TFEU), it is envisaged that the Parties will "negotiate in parallel the agreements needed to give the future relationship legal form".

That means that the intention is to avoid sequencing, where one part or chapter must be agreed before moving onto the next, which is the way the withdrawal agreement has been handled and the way accession treaties are negotiated.

However, while the willingness may be there (in theory), such a process is highly manpower-intensive and it may be that the Commission will not want to (or can even afford to) commit the resources necessary to secure expeditious progress.

Nevertheless, we should see some signs of where they stand very quickly after Brexit. The intention is that, immediately following the UK's withdrawal, the Parties have committed to agreeing a programme setting out the structure and format of the negotiation rounds and a formal schedule of negotiating rounds.

Setting out such a detailed timetable is rare, and represents a huge gamble on the part of the UK. It gives a venal media exactly the sort of points they can focus on, which even the average political correspondent can understand – a series of cliff-edge deadlines over which they can hyperventilate without having to address any of the details.

Drilling down into the detail, we can already see that the future agreement is built round concessions which the UK will have to make for the thing to work. Clues can be seen in the juxtaposition of multiple contradictory statements in Articles 24 and between that and Article 25. The combination rather gives the game away.

Opening Article 24, we see the "motherhood and apple pie" sentiment to the effect that the parties will be "preserving regulatory autonomy", followed by the commitment to "put in place provisions to promote regulatory approaches that are transparent, efficient, promote avoidance of unnecessary barriers to trade in goods and are compatible to the extent possible".

Of course, if "unnecessary barriers to trade in goods" are to be avoided, then there must be regulatory alignment. That means that "regulatory autonomy" on one side or the other will have to go. And we don't even have to guess which party will have to make the sacrifice. Article 25 tells us that "the United Kingdom (not just 'Britain') will consider aligning with Union rules in relevant areas".

If there is to be anything approaching frictionless trade – and the gentlemen and ladies of the press have already noted the absence of this phrase from the declaration – then the UK will have to do a lot more than "consider". Here lies the vassal's charter, with not even the tempering provisions of the EEA, which require consultation on all new initiatives.

In fact, the UK admits later on in Article 24 that we will have to go much further than mere regulatory alignment. "Disciplines on technical barriers to trade (TBT) and sanitary and phytosanitary measures (SPS) should build on and go beyond the respective WTO agreements", the Article says.

Taking us into the spider's web of the EU's regulatory "ecosystem", it tells us that the TBT disciplines should set out common principles in the fields of standardisation, technical regulations, conformity assessment, accreditation, market surveillance, metrology and labelling.

As far as animals and animal products go, the parties commit to treating one another as single entities as regards SPS measures, "including for certification Purposes". Furthermore, they will "recognise regionalisation on the basis of appropriate epidemiological information provided by the exporting party".

Effectively, we remain within the orbit of the EU's regulatory system, with profound implications for making trade deals with other third countries outside the EU sphere of interest. This is a straight rebuttal of the claim that the "British" people will be "taking back control of our laws". We won't.

Another climbdown lies within the realms of our relationships with EU agencies. In March 2018, the fatuous Mrs May spoke at the Mansion House in London, arguing for something she had absolutely no chance of delivering.

"We will also want to explore with the EU, the terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries: the European Medicines Agency, the European Chemicals Agency, and the European Aviation Safety Agency", she said.

Burbling on, this stupid woman then declared that we "would, of course, accept that this would mean abiding by the rules of those agencies and making an appropriate financial contribution", before going on to set out what would be the non-existent "benefits" of this approach.

Associate membership of these agencies, she said, is the only way to meet our objective of ensuring that these products only need to undergo one series of approvals, in one country. The agencies had "a critical role" in setting and enforcing relevant rules, and associate membership could permit UK firms to resolve certain challenges related to the agencies through UK courts rather than the ECJ.

Coming down to earth with a bump, all the declaration will allow is for the parties to "explore the possibility of cooperation" of UK authorities with agencies of interest.

Anyone with the slightest knowledge of EU law would tell you that this had to be the case. But our brilliant prime minister knew better. And for her next trick, she will walk across the English Channel to get to Brussels. What she doesn't escape from though is "a fair and appropriate financial contribution". She doesn't get a ticket to the party, but she still has to pay the bills.

Moving on, we find customs dealt with in a completely separate section, defined by Articles 26 and 27. The Parties are to "put in place" ambitious customs arrangements, in pursuit of their overall objectives.

In what has been hailed as a resuscitation of "MaxFac", the Parties envisage making use of all available facilitative arrangements and technologies to achieve this. And that actually makes sense – the direction of travel in customs management is towards more automation.

But, in a distinction that will be missed by many, this provision applies only to customs. Technical barriers to trade and the all-important sanitary and phytosanitary provisions lie outside the scope of these Articles.

Thus, while "facilitative arrangements and technologies" will also be considered in developing any alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing, broad spectrum regulatory checks are still on the agenda.

Altogether, Mrs May's government has taken us down this laborious road to achieve so very little that even the meanest intellect must be wondering why we didn't go for the much superior Efta/EEA option. But that won't include Mrs May. She is in "broadcast only" mode, settling out to sell her package to the indolent and terminally thick.

Outside parliament, she will also have to struggle, but when a prime minister is prepared to lie, and does it so fluently, the world is her oyster. If she repeats her lies often enough, there may be enough people who will believe she has achieved something worthwhile.

In reality, she really has sold us out. But we knew that had to happen ever since her 2017 Lancaster House speech. A flock of rather bedraggled chickens has come home to roost.

Richard North 23/11/2018 link

Brexit: the lies of the ERG


"Today", wrote Steve Baker yesterday, "saw the launch of Peter Lilley's outstanding research report Fact Not Friction supported by a cross-party and non-aligned group. The paper exposes as baseless over a dozen myths about leaving the EU Customs Union under WTO terms".

The paper is in fact jointly published (after a fashion) by Global Britain and the European Research Group (ERG). To call either a "cross-party" or "non-aligned group" is a bit of a stretch. In particular, the ERG is very obviously and undeniably the support group for the Tory "ultras" and while it has a few token Labourite supporters (such as John Mills) it quite plainly represents a right wing faction of the Conservative Party.

That Baker somehow feels the need to pass off the publisher of this tawdry work in such a fashion is somehow indicative of the whole way his faction and its representatives conduct their business, spewing out half-truths, outright lies and plain dissimulation.

In choosing Peter (now Lord) Lilley to produce their pamphlet, they remain very much in character. They are employing a practised liar to prostitute the prestige of his rank and seniority to deliver an ugly pastiche that serves to do nothing other that what the ERG have always done – to confuse, obscure and to divert people from the intellectual corruption of their own political position.

Even the sub-title of this thing is misleading. It tells us the two groups are "exploding the myths of leaving the Customs Union" when, from the context and content of the pamphlet, it is very clear that Lilley is talking about the single market as well as the customs union.

That the two should be confused (or elided) is very much in accord with the broader debate, where politicians, journalists and others – throughout the land – have consistently failed to understand that the two entities are entirely separate, with distinct historical timelines and different legal and practical effects.

Not for the first time do we have to remark on the utter intellectual destitution of the political and media establishment (and its hangers on) in failing to get to grips with the very basics of the European Union structure. But it is entirely in character that Lilley's work should reflect the impoverishment of the whole – he is, after all, part of that intellectually corrupt establishment.

That said, I do not intend to produce a point-by-point rebuttal of the 24-page pamphlet. Not only would it take too long, no one would read it – no more than they are going to read the original. Rather, it is more profitable to focus on a few points, to illustrate how Lilley the liar plies his dishonest trade.

With that, my eye is immediately drawn to point four in the executive summary (page 4), which declares as follows:
The claim that WTO rules require checks to be made at the border is incorrect. Checks of customs declarations are carried out electronically and physical checks often made at importer's or exporter's premises. Even the Union Customs code, which requires agri-food checks at border inspection posts "in the vicinity of the border" allows them to be as far as 40 kms inland. This is particularly important for avoiding infrastructure and checks at the Irish border.
This short passage starts with a familiar technique, the "straw man", retailing an assertion that is so obviously untrue that it is easy to knock down – so establishing the "authority" of the author.

Thus we see the assertion that "The claim that WTO rules require checks to be made at the border is incorrect" – which is, of course, well-founded and perfectly true. States naturally gravitate towards requiring checks on their borders and need no encouragement from external bodies.

The only standing that the WTO has in the matter is in its insistence that (with certain exemptions), all goods are treated in the same way. This applies specifically to countries where there are no formal free trade agreements, so that the goods from country X must be subjected to the same regime as is applied to country Y.

The passage then goes on to assert that "checks of customs declarations are carried out electronically and physical checks often made at importer's or exporter's premises". Both of these points are perfectly true, although deferred inspections are a concession that can be withdrawn at any time.

Then, however, it starts to get interesting, as we see the claim: "Even the Union Customs code, which requires agri-food checks at border inspection posts "in the vicinity of the border" allows them to be as far as 40 kms inland".

Starting from the beginning, we find in actuality that there is no reference at all to border inspection posts in the Union Customs Code (UCC). And nor would any knowledgeable person expect a reference. Sanitary inspection precedes customs formalities and comes under a completely separate tranche of legislation generically known as the "official controls" – currently Regulation (EC) No 882/2004. And as to the claim that agri-food checks must be carried out at border inspection posts (BIPs) "in the vicinity of the border", that is simply not true.

For details as to the location of BIPs, we must in fact visit not the UCC but Council Directive 97/78/EC of 18 December 1997, laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries.

This is not identified by Peter Lilley in his pamphlet, which is hardly surprising - it is the last place he would want us to visit as it does not support his claim. In the first instance, the law would never restrict locations to a border because inland airports also handle goods which must be checked.

What the law actually states, therefore is that the BIP must be "located in the immediate vicinity of the point of entry" into the Member State. And here, one should note the caveat "immediate". Conveniently, Lilley omits this all-important caveat.

But the law does not even stop there. It goes on to say that the area in which a BIP is situate must be one "which is designated by the customs authorities in accordance with the first subparagraph, points (a) and (b) of Article 38(1) of Regulation (EEC) No 2913/92. That effectively means an area designated by the customs authorities and under their supervision.

Based on these serial falsehoods, however, Lilley goes on to assert that the apparent (but non-existent) flexibility allows BIPs "to be as far as 40 kms inland". This, he says, "is particularly important for avoiding infrastructure and checks at the Irish border".

The 40 kms, of course, is a fabrication. It is made up. It is a lie. And I cannot even be sure where it comes from, although the ERG have been peddling this falsehood for a little while. In a document published on 12 September 2018, for instance, it asserts that:
… the EU allows inspection posts – operated by both government agencies and the logistics industry – to be placed considerable distances from the physical point of entry. In Rotterdam, for instance, inspection posts are located in the wider region around the harbour up to 20 km from the docks themselves.
On this basis, the author claims that "EU precedent suggests that even where physical SPS checks are necessary, they can take place some 20 km from the border itself (as, for example, in Rotterdam)".

Not only is this not true in principle, it is beyond disingenuous at several levels. Rotterdam is not so much a port as a port complex, stretching from the Maas estuary at the North Sea end, with the Kloosterboer Delta Terminal, into the heart of the city, with an outpost Dordrecht on the Oude Maas. In all, it extends over 40 kms from end to end (pictured).

Putting this in context, even if the BIP was bang in the centre of the port complex, it would still be 20 km from the "border" – i.e., the seaward edge of the complex. As it is, the ERG cannot even get that right. There are in fact four separate facilities registered with the EU, including one at the Kloosterboer Delta Terminal, right at the entrance to the estuary.

Returning to Peter Lilley, in his one short piece, only a small part of the whole, there are major errors and misrepresentations. Nevertheless, the question that might be argued is whether he is actually lying or has simply got it wrong. But here, in making the judgement, we have to recall that the less-than-noble Lord has form in distorting evidence to fit his claims.

Moreover, in respect of BIPs and sanitary inspections, Lilley must know he's wrong, because I have told him so. The man knows me, knows my reputation as a researcher and has been specifically briefed on these issues.

The reality is that sanitary inspections and the need for BIPs blows a gaping hole in the ERG case for frictionless trade based on WTO rules and/or free trade areas. But, being unable to wish away the inconvenient truths, Lilley does the next best thing. He lies. His are deliberate, unconscionable lies, aimed at pursuing a distorted political agenda which he must know cannot survive the cold light of day.

Interestingly, even the BBC challenged Lilley on his claims, whence the man did what he always does – he blustered and evaded the questions.

That is the measure of the man, and the ERG (to say nothing of Global Britain). But it also illustrates the problem we have when authoritative figures decide to lie. His 75 words takes nearly 1,700 of mine to knock them down. The lies spread faster than they can be challenged and corrected.

And, although I am calling Lord Lilley out as a liar, on a well-read blog, he will do nothing. He dare not. Instead, he will go into denial – in common with his political acolytes. That is the way these people work: they ignore criticism, pretending it does not exist and just go on repeating their lies.

However, Lilley has done us a service, illustrating once again how the ERG works. These people are not to be trusted and the case they make, founded on lies, is terminally flawed. The way they behave is disgusting. They add immeasurably to the debasement of politics, and the erosion of trust.

Richard North 21/11/2018 link

Brexit: the revolution eats its children


With some (unintended) prescience, I wrote on Sunday about Dominic Cummings admitting that the "physical reality" of the Eurosceptic movement was one where "almost nobody agrees … about almost anything".

That has always been the curse of Euroscepticism and from the look of it, nothing has changed. A headline in the Telegraph tells it all: "Tory Eurosceptics have admitted an attempt to unseat Theresa May had stalled as bitter in-fighting broke out among Brexiteers".

Despite "confident predictions" from Tory rebels that a no confidence vote would be held as soon as Tuesday, says the paper, the extra letters from Conservative MPs needed to trigger a ballot failed to materialise on Monday. So, we are told, the vote now appears to be "on hold" until after Parliament votes next month on Brexit.

Just one new name came forward to reveal they had submitted a letter last night. This was "hardline" Eurosceptic Philip Hollobone, and he'd sent in a letter four months ago.

One senior Brexiteer source is cited as saying: "Today was supposed to be the day we finally got the 48 letters needed to force a no confidence vote but some people didn't turn up to be counted. There is a lot of frustration, especially with some of the big names who haven't yet put letters in".

The feeling is that many of the colleagues don't want to commit themselves yet and were setting their sights on reaching the target after parliament votes next month. They believe that Mrs May would be more likely to lose a confidence vote if she had already lost a vote on the Brexit deal. Another of these "senior Eurosceptics" thus tells The Telegraph that: "Many people are saying that the meaningful vote is the right time to put in letters, that they don't want to do it yet".

Meanwhile "senior Brexiteers" Iain Duncan Smith and Owen Paterson have been meeting Mrs May in Downing Street which, according to The Sun had "furious Brexit Tory rebels" accusing their older colleagues of "slamming the brakes on a bid to oust Theresa May because they want peerages".

But another of these brave Eurosceptics said of Messrs Duncan Smith and Paterson: "I find it surprising that they are so biddable. I cannot understand why they are so willing to believe what Downing Street is saying when they have gone back on their word on every other occasion. It's hugely frustrating".

There you have it. When the chips are down, the "ultras" can't even mount a decent rebellion. And then the time comes for a vote in parliament, we've already suggested that the most likely outcome is that Mrs May will turn that into a vote of confidence, and the Tory "ultras" will fold. That's what they do.

Of course, they will have all sorts of justifications but the reality is that, confronted with the prospect of a general election where Corbyn might get elected. they will suddenly find they can live with the "un-deal". Their survival comes first.

Nevertheless, Mrs May seems to be helping herself in the propaganda stakes – if that's what we're seeing. In The Sun, we are told that she has "drawn up a secret plan to scrap the controversial Irish backstop in a bid to win round angry Tory Brexiteers". Thus the paper claims that she has "quietly won agreement" for "alternative arrangements" to keep the Irish border open.

It turns out that this is our old friend "maximum facilitation", which is supposedly being "studied afresh" in No.10. Mrs May is said to hope to regain some Brexiteer support if she commits to working up this "technological solution" in time to avoid the need for any backstop.

Despite this option having already been ruled out by the EU, here it is again making a guest appearance, dragged out of retirement to fool gullible "ultras" – or perhaps to give them an excuse to vote for the draft withdrawal agreement in parliament. At this stage it's impossible to say.

What is clear though is that this whole thing seems to be descending into a shambles – as much farce as tragedy, with commentary not far from gibberish. After Kier Starmer pronouncing that he would use parliament to make "no deal" impossible, we now have the cretin David Davis adding his stupidity to the pile.

In the home of the politically hard of learning, Conservative Home, we have him asserting that, "if we need to leave with no deal and negotiate a free trade agreement during the transition period, so be it". He adds, "Let's be clear and honest and tell the EU that’s what we are prepared to do".

From any other MP we might just be prepared to write this off as the random stupidity so common of the breed but this man, until recently, was secretary of state for Brexit and (theoretically) in charge of our negotiations.

It is almost an insult to the intelligence to remind people that, without a deal there is no transition period. But one has to concede of CH, if they can find somebody stupid enough to plumb the depths, they can be sure to find space on its website.

I wrote recently of the Brexit debate that the problem with it was that it was impossible to kill a bad idea – and so it is that we have another example of this as CH allows the idiot Davis to say that, without a deal, "we only need to be ready to trade under World Trade Organisation rules".

Faced with this sort of low-IQ politics from "our man in Brussels" (until recently), it is no wonder that the EU is taking us to the cleaners. It did so when we joined and now, it seems ready to repeat the same thing as we leave.

It almost goes without saying though that a voluble faction of the "remain" tendency is exploiting the shambles to press home its "people's vote" agenda. One of the latest recruits to the cause is Times columnist Rachel Sylvester. In her view, "remainer" MPs have been pushed too far by Brexit extremists and they will now stand and fight for what they believe.

She cites "pro-European ministers" who, she says, are so worried about the economic consequences of a "no-deal" Brexit that if the country was heading for such a scenario they would resign and support a people's vote. "We have made compromises to hold the government together but the hard Brexiteers can only push us so far before we go to war", says one. "If they get us to no-deal then all bets are off".

In it's own way though, this is another example of low-IQ politics. It must be obvious by now to even the meanest intellect that there is no time for a referendum – and (just as importantly) no political will to make it happen. That and other barriers will ensure that there will not be a referendum on the Brexit deal.

Former Times editor, Simon Jenkins, is more coherent, lambasting "remainers" for the "silence of the lambs". As soon as the referendum result was announced, he says, the defeated remainers tried to pretend it had not happened. They demanded another referendum, which inevitably sounded like sour grapes and a denial of democracy.

Some insulted Brexiters and others, Jenkins continues, wasted time going to court. They even joined hard Brexiters in deriding such compromises as versions of the Norway option, the single market and a customs union. The case for soft Brexit went by the board.

This man concludes that the case for remaining in some form of single market with the rest of Europe is overwhelming. One day he is sure it will happen but the cost and chaos of getting there has been immeasurably increased by the failure of former "remainers" to fashion an argument and give it political traction. They have, he avers, "snatched a second defeat from the jaws of the first".

And still that defeat looms large. Some suggest that it might be possible to negotiate the Efta/EEA option during the transition period, although I doubt very much whether the current 21 months allowed would be sufficient to conclude the deal. Even with an additional year, it would be a pinch.

One must remember here that the EEA arrangements alone would not be sufficient to normalise relations with the EU. Norway, for instance, still finds it necessary to keep a further 50 bilateral treaties in force.

And, of course, once the transition period is past and we are (inevitably) in the grip of the Protocol on Ireland, the commitment in Article 4 to harmonise UK commercial policy with the common commercial policy of the Union, set out in Article 207 of the consolidated treaties, requires us to hand over "the conclusion of tariff and trade agreements relating to trade in goods and services" to the EU. On that basis, the window of opportunity to join Efta (itself a trade agreement) would be snapped shut.

It is said of Brexit that it was the start of a revolution and, with the activities of the "ultras" we have seen a revolution within a revolution. And all too soon, we are seeing the seemingly inevitable consequence, where the revolution eats its children. But even with that (or especially), we can never go back to where we were.

Richard North 20/11/2018 link

Brexit: another fine mess


The only thing that is now absolutely certain about Brexit is that what we voted for in the referendum was not the utter chaos we are looking at today, writes Booker in today's column.

What most of us making up that 17.4 million imagined we were voting for was not just that we should leave the EU, but also that we should do so with minimal damage to our economy.

But the problems started way back when the Brexiteers behind the official Vote Leave campaign very deliberately decided that they should not put forward any specific plan for how this might be achieved. Their view was that, if any such strategy was proposed, this would only set off ferocious arguments with all those lobbying for alternative plans.

This was evident in a sneery e-mail which Dominic Cummings sent me in July 2015 in response to one of mine when I had argued that the official "no" campaign would need an exit plan.

Cummings by then was already aware of Flexcit, acknowledging that it was "unarguable" that it was "a very important document", but we went on to say that he had to deal with "a physical reality" where "almost nobody agrees … about almost anything".

Thus, it was not a question of the campaign failing to have a plan. The idea was deliberately rejected, an act of cowardice that had the main players ducking an issue that was inevitably going to rebound on us all, simply because the campaign wanted to avoid disagreement in its ranks.

The inevitable result of this act of cowardice - only offering voters a blank cheque as to what might happen next - was that it merely postponed the moment when precisely those arguments were bound to emerge. After the result, each of the rival groups could then claim that the referendum result supported whatever agenda they were putting forward.

The trouble was that none of these competing views, including those of the "ultra" Brexiteers, was based on any proper understanding of the incredibly complex realities of the situation we were facing.

This was never more tellingly demonstrated than by Theresa May's Lancaster House speech in January 2017 when, under the spell of the Brexiteers in her Cabinet, she for the first time announced that we should leave not just the EU itself but also the wider European Economic Area.

Since this meant that we would lose our "frictionless" access to the single market, it inevitably faced us with a whole raft of new problems, from the Northern Irish border and the likeliood that we would risk damaging significant parts of our export trade to the terrifying consequences of our crashing out without a deal.

Only recently does it appear that the government has belatedly woken up to the scale of the disaster this was threatening to almost every part of our economy. And having boxed herself in, that lead to Mrs May finally agreeing the tortuous 585-page "draft withdrawal agreement".

It is impossible to read this document in a single session and the complex bureaucratic phrasing and confusing structure make comprehension difficult. Undoubtedly, even now, few people will have read it and even fewer understand it.

Only by piecing disparate and separate parts, and then cross-relating the text to real world scenarios can sense be made of it. For instance, in the crucial phrasing of Article 1 of the Protocol on Ireland, we see stated that the objective of the withdrawal agreement "is not to establish a permanent relationship between the Union and the United Kingdom".

Thus we are informed that the provisions of the Protocol are "intended to apply only temporarily", a claim on which Mrs May relies when she tells us that it is of no great significance.

The problem arises, however, with the Article stating that the provisions of the Protocol apply" unless and until they are superseded, in whole or in part, by a subsequent agreement".

Article 2 then tells us that the EU and the UK "shall use their best endeavours" to conclude, by 31 December 2020, an agreement which supersedes the Protocol "in whole or in part", so coinciding with the end of the transition period, when the Protocol comes into force.

In theory, in concluding a superseding agreement by this date, the Protocol never comes into force and the problems inherent in its application are avoided. But, in practical terms, the "best endeavours" phrasing is meaningless. It does not create a legal commitment to any defined timescale. It is simply an aspiration.

On the other hand, the reality is that it could take anything up to ten years to conclude the complex free trade agreement that the political declaration has in mind, which means that the Protocol would most certainly have to come into force – even if the transition period was extended.

And even here, there is a serious political issue as we learn that just an extra year could cost the UK an extra £10 billion in contributions to the EU budget.

The unalterable point therefore, is that the UK will find itself having to apply the Protocol while then negotiating with the EU on measures that will replace it. And the key point here is that any measures must respect the requirement to avoid a hard border between the two Irelands.

Therein lies the rub, as the real world intrudes. Nothing which the UK intends to negotiate with the EU by way of "regulatory cooperation" in the framework of a free trade area could adequately replace the Protocol. Nothing proposed could remove the need for the hard border.

With the Protocol then in force, any amendment must be agreed by the body set up by the Protocol – the so-called Joint Committee comprising representatives from the EU and the UK. Acting by "mutual consent", that effectively gives the EU a veto on amendments while refusal to agree would be justified if any measures failed to preserve the "frictionless" border.

Booker picks up the threads here, By this means, he notes that Mrs May has in effect agreed we should remain for an indefinite period in the customs union specified in the Protocol.

The EU will be calling literally all the shots, from making all the rules without consulting us and subject to the rulings of the European Court of Justice, to deciding when this compromise arrangement will end.

But the EU has not stopped there. It piles on the agony demanding that, "with the aim of ensuring the proper functioning of the single customs territory", a huge raft of additional measures must be adopted. Amongst other things, this means we must accept in its entirety all the EU's climate and energy agenda.

All this, says Booker, was why Mrs May was greeted with ridicule when she yet again intoned her robotic mantra that the agreement showed us "taking back control of our laws".

Not surprisingly this prompted furious protests from every part of the political spectrum, which continue to this day. In Booker's view, the chances of the withdrawal agreement being approved by Parliament are "zero". Even if I am less sanguine, no one can dispute that Mrs May's cabinet is in meltdown and that she has plunged British politics into a crisis for which it is almost impossible to think of any historical precedent.

Naturally, Booker concludes, this has left the EU itself in an impossible quandary. No sooner had its leaders acclaimed the agreement as at last a "positive breakthrough" than they saw Mrs May’s government dissolving into such chaos that they could only insist that any further negotiations were out of the question.

Stand by, he says, not just for weeks or months more of chaos, but years of even worse to come.

If we then cut to Simon Heffer in his column, we find him being less than complimentary about the "fatuous five" Brexiteers remaining in the Cabinet.

Including Michael Gove and Andrea Leadsom, this group is apparently working on revisions to the draft withdrawal agreement and is pushing Mrs May to insist on Brussels making changes to the draft. This is despite that fact that multiple EU-related sources have made it clear that the draft is final and cannot be revisited.

The key change being demanded by the "fatuous five" is – predictably – that the UK should be afforded the unilateral right to withdraw from the "backstop". Yet, for all the problems it is causing, there is little the EU can do. As long as both parties are committed to a frictionless Irish border, it cannot allow the UK the freedom of action in walking away without equivalent measures in place.

Even at this stage, though, Mrs May could get herself off the hook by moving to adopt the Efta/EEA option although, even now she is denying that this would solve the Irish border problem.

There demonstrated is Mrs May's unending capacity to make a mess of Brexit. Despite the fact that the Protocol achieves frictionless trade by implementing regulatory alignment with the Single Market acquis - the very essence of the Efta/EEA option.

Drowning in her own mess, this stupid woman hasn't the sense to recognise a lifeline dangling in front of her nose. Would that she had someone close to her to spell out in comedy style that this is yet another fine mess she has got us into.

Richard North 18/11/2018 link

Brexit: the theatre of it all


The day the draft withdrawal agreement was published, I posted on Twitter what I thought was a sardonic message. The media, I wrote, have spent all day talking about the Brexit agreement without having any of the details. Just because the agreement has been published, that shouldn't make any difference. They might as well continue as they have before ... they've never needed details before. 

I need not have bothered. A mere twenty-four hours on from the publication, the media have abandoned even their perfunctory attempts to inform their customer base of the intricacies of the agreement.

And, if I was like the 79 percent who rely wholly or mainly on the television for my news, the chances of being exposed to any detail would have been very slight indeed. Two main BBC bulletins down, and the kindest one could say of the coverage on the details was that it was superficial.

Furthermore, it is quite clear that we are going to get no candour from the prime minister about the deal who, in trotting out her familiar mantras is now openly lying.

That much was evident from her statement following the cabinet meeting. There was nothing new in it, as she told us the deal: "brings back control of our money, laws and borders; ends free movement; protects jobs, security and our union".

Crucially, as we see non-regression clauses in the agreement, we are locked into maintaining major tranches of Union law, with no discretion afforded to the UK government. And nor is this at all academic. If we go back to pre-referendum times, one of the really big deals was the cost of EU regulation, with the much-touted Open Europe survey which claimed a £33.3 billion annual cost of the 100 "most burdensome" EU regulation.

Prominent in the top five was the EU climate and energy package, with a recurring cost of £3.4 billion a year, with the clear "promise" that leaving the EU would enable us to save those on those costs. Yet, as I pointed out yesterday, we are totally locked into the EU's climate change agenda, including implementing the UN Framework Conventions on Climate Change, latterly reinforced by the Paris Agreement of 2015.

Strangely enough, one of the best clinical analyses of the "backstop" in the withdrawal agreement is in the much-reviled Telegraph and even this does not mention the non-regression requirements.

It is these, as much as anything, which makes a liar of the prime minister. Yet they get one sentence in the analysis offered by the Guardian, and the Independent gives us a mere partial sentence, informing us that the agreement "effectively keeps the UK tied to swathes of EU regulations through 'non-regression' and 'level playing field' clauses…". Otherwise, they are largely invisible in the media.

But there is no point looking to our MPs for clarity. They had their turn yesterday with the prime minister's statement to the House which turned into a three-hour marathon running to 52,000 words in the current edition of Hansard.

Here, in all that torrent of words, there is but one reference to "non-regression", made by the prime minister and limited to a throw-away remark on the question of workers' rights.

Mrs May, predictably, plays down the importance of the backstop, describing it as an "insurance policy" which is never intended to be used. "We want to ensure", she says, "that the future relationship is in place before the backstop is necessary".

This is targeted for December 2020, with the provision for a single extension to the transition period, to allow for delays in the negotiations. Yet this relies on the slender thread of a seven-page document setting out the outline of the political declaration.

All we have on offer hers are: "Comprehensive arrangements creating a free trade area combining deep regulatory and customs cooperation, underpinned by provisions ensuring a level playing field for open and fair competition", yet it is this which is to provide the "alternative arrangements" to ensure "the absence of a hard border on the island of Ireland on a permanent footing".

In her address to the Commons, Mrs May elaborated on this, telling MPs that we were "looking to ensure that we have the frictionless trade across borders that will enable us to not only deliver on our commitment for Northern Ireland, but ensure that we have frictionless trade between the United Kingdom and the whole of the rest of the European Union".

One really does not have to be an expert in this context to know by now that the provision merely of a free trade agreement, even if it combines "deep regulatory and customs cooperation", does not secure " frictionless trade across borders". Not by any stretch of the imagination could this ensure the absence of a hard border on the island of Ireland.

The prime minister, therefore, is attempting to sell us a false prospective, one that can only rebound on us when any arrangements have to be approved by the Joint Committee, in which the EU has a veto.

This, at least, was challenged, albeit weakly, by Frank Field in yesterday's debate, when he asked Mrs May to "guarantee to the House that at the end of March we will continue to have frictionless supply chains". This is what he got by way of a response:
We have also based the concept of the free trade area on the need for that frictionless trade in goods, to ensure that the people whose jobs depend on those supply chains do not see those jobs go, and that not only are we able to retain those jobs, but, with the other trade agreements that we are able to bring forward once we are outside the European Union, we can enhance the economy and create more jobs in this country.
Worryingly, Frank Field's challenge was not repeated, or expanded upon by other MPs, leaving Mrs May's claims hanging, the equivalent of arguing that black equals white.

In the following exchanges, however, there was some appreciation that this withdrawal agreement – and the backstop – does not fulfil the commitment to "taking back control" but this has not really carried over into today's media. There, in all its glory, is the soap opera of ministerial resignations, leadership challenges, rebellions and elections.

Notably, though, in what was styled as a "defiant press conference" in Downing Street yesterday, Mrs May had subtly changed her message to the public.

The deal, she then claimed, delivered on the vote of the British people by "ending free movement … ensuring we are not sending vast annual sums to the EU any longer [and] ending the jurisdiction of the European Court of Justice". It also protected jobs and people's livelihoods, our security, and the union of the United Kingdom.

Interestingly, there was no mention of taking back control of our borders, nor of our law. And not by any measure has Mrs May set in train a process where we regain control over the regulatory agenda.

Therein, one can assert, lies the greatest flaw in the entire draft agreement. Had we adopted the Efta/EEA option, we would have limited the scope of the regulation which would have applied, and would have had some influence over new measure – with a right of veto.

But Mrs May has been amongst those to have rejected this option, precisely because we had to accept [some] EU laws, while she also wrongly asserted that we would have no say in the making of new laws. But in exchange, she wants us to accept an arrangement which is inestimably worse, taking in a wide range of EU law from an entirely subordinate position, with no easy exit clause.

For all that, though, the dangers of a "no deal" have been understood by some newspapers, so we have The Times arguing that MPs should "back Mrs May or gamble on a second referendum".

That is about as incoherent as Mrs May's draft withdrawal agreement, with neither option taking us closer to leaving the EU. The only real option in place now which unequivocally respects the verdict of the 2016 referendum is the "no deal".

That it should have come to that is a tragedy, and more so when we have a media so obsessed with the theatre of it all that it can't be bothered to explain the issues.

Richard North 16/11/2018 link

Brexit: in the line of fire


You will doubtless be pleased to know that the objective of the "withdrawal agreement", the draft of which was published yesterday, is "to ensure an orderly withdrawal of the United Kingdom from the Union and Euratom". Additional link here.

To achieve that vital task, it has used the letter "a" 37,207 times, "k" a mere 2,229 times and "t" 49,159 times in the 585-page draft. I just thought you ought to know that.

By similar token, in all of the 585 pages, the term "customs union" is used exactly twice. This is an area of particular concern and, given such a long and complex document, has to be the main focus of this blogpost.

The first reference to "customs union" is in relation to the Protocol on Ireland and Northern Ireland, where it is agreed in the recital that the protocol should be based on maintaining full alignment with those rules of the Union's internal market and the customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement (the GFA).

These rules are to apply unless and until an alternative arrangement implementing another scenario is agreed. The second reference, also in the recital to the Protocol, notes that the rights and obligations of Ireland under the rules of the Union's internal market and customs union must be fully respected.

One can more or less disregard the second reference and take it that the first requires Northern Ireland to conform with the rules of the EU's Single Market and Customs Union, until "an alternative arrangement" is agreed.

On the face of it, that would seem to be creating a separate administrative zone for Northern Ireland but, of course, that is not the case. In what is a complex sleight of hand, worthy of any senior member of The Magic Circle, multiple separate provisions have to be tied together. When they are, they transform the situation.

The first is Article 6 to the Protocol which states that, until the future relationship becomes applicable, a single customs territory between the Union and the United Kingdom shall be established. Thus, as before we supposedly left the EU, the UK is part of a "single customs territory". Furthermore, Northern Ireland is in the same customs territory as Great Britain.

Now, that alone does not tell the whole story – not by any means. If there is to be a "single customs territory", rules must apply to it. But these rules are not to be found in the Article. It refers you to Annex 2 to the Protocol, which apply in respect of all trade in goods between the territories.

Referring then to Annex 2, we find an interesting omission – it does not bear any title. It is only as you go through all six articles do you realise what it is. This sets out in clear concise language the provisions of a customs union, thereby abolishing tariffs and like measures through the territory, and setting what amounts to a common external tariff.

For the duration – i.e., until alternative arrangements apply – the UK is told that "under no circumstances" can it apply to its customs territory "a customs tariff which is lower than the Common Customs Tariff for any good or import from any third country".

Not indeed does it stop there, as the Annex also requires the UK to "harmonise the commercial policy applicable to its customs territory with the common commercial policy of the Union". For the duration, we are thus in lock-step with the Union.

As to the "detailed rules relating to trade in goods" between the two parts of the single customs territory, we are in effect than bound by yet another provision. This is Annex 3 which imposes a raft of detailed requirements (formalities) relating to the production of movement certificates and the validation of the status of the goods.

From a study of the text here, the bureaucratic style of which does not make comprehension easy, we see also that customs authorities which issue certificates have to take "any steps necessary to verify the status of the products and the fulfilment of the other requirements of the Protocol and of this Annex". This, as far as I can see, requires checks to be carried out, some of which will doubtless involve cross border checks.

To pull the whole picture together, one then has to cross-read with Annex 4, which requires "cooperation" on taxation, extending to a commitment to continue to apply substantial provisions of Union law, "as applicable at the end of the transition period".

The UK must also commit to "non-regression in the level of environmental protection", whereby the United Kingdom "shall ensure that the level of environmental protection provided by law, regulations and practices is not reduced below the level provided by the common standards applicable within the Union and the United Kingdom at the end of the transition period".

It its own environmental legislation, the UK is required to "respect" key EU principles , which include: the precautionary principle; the principle that preventive action should be taken; the principle that environmental damage should as a priority be rectified at source; and the "polluter pays" principle.

We are also required to take the necessary measures to meet our commitments to international agreements to address climate change, including those which implement the United Nations Framework Conventions on Climate Change, such as the Paris Agreement of 2015.

Additionally, we have to implement a system of carbon pricing of at least the same effectiveness and scope as that provided by Directive 2003/87/EC. Provisions relating to the monitoring and enforcement related to environmental protection must also be maintained.

Non-regression must also apply to labour and social standards. With the aim of ensuring the proper functioning of the single customs territory, the UK has to ensure that the level of protection provided for by law, regulations and practices is not reduced below the level provided by the common standards applicable within the Union and the United Kingdom at the end of the transition period.

And not content with that, "with a view to preserving a robust and comprehensive framework for State aid control that prevents undue distortions of trade and competition", the Union State aid law provisions listed in yet another Annex – this one Annex 8 - must apply to the UK. Furthermore, competition provisions set out in Union law still apply.

Throughout the protocol, there is a constantly repeating phrase, where provisions of Union law apply "to and in the United Kingdom in respect of Northern Ireland". The meaning of this, no doubt, is clear to its authors but to my mind holds a level of ambiguity. Does the law apply to the UK as a whole, or just Northern Ireland?

Ostensibly in an attempt to clarify issues, there is a technical explanatory note and the Commission has published some additional fact sheets, with one on the protocol. These seem to confirm (unless I am very much mistaken) that the protocol reaches past the transition period and stays unless in force until it is superseded, in whole or in part, by a subsequent agreement.

This, effectively, is the "backstop", and the fact sheet makes it clear that the single EU-UK customs territory is established "from the end of the transition period until the future relationship becomes applicable". That effectively means the whole of the UK is locked into a customs union, after the end of the transition period, until a permanent solution to the border problem is agreed.

Yet, getting rid of these provisions is not going to be easy. The way it works, apparently, is that at any time after the transition period, the EU or the UK may consider that the Protocol, in whole or in part, is no longer necessary.

That party must then notify the other, setting out its reasons. This kicks in a "Joint Committee" - established in Article 164 of the Withdrawal Agreement – which considers the notification and may seek an opinion from institutions created by the Good Friday (Belfast) Agreement 1998.

Following discussions in the Joint Committee, the EU and the UK may decide jointly that the Protocol, in whole or in part, is no longer necessary to achieve its objectives.

The way this Joint Committee is set up, it is required to adopt its decisions and make its recommendations "by mutual consent", which means that the EU has a veto on when (or if) the UK can drop out of the customs union, with a final appeal to an arbitration panel. On matters of Union law, however, the ECJ has jurisdiction to make rulings, which are binding on the arbitration panel.

Any which way you look at it, this accumulation of issues raises many important questions. It is hard to see that the UK has secured the ability unilaterally to remove the "backstop" and, as the agreement stands, it is possible to see a scenario where the UK is locked in perpetuity into a customs union with the EU.

The issues relating to the single market, and regulatory checks is by no means clear and, it seems, are still not fully resolved, leaving areas for future dispute.

But, just from what we have seen, there is ample material to support an assertion that this is Brexit in Name Only (BRINO). If the ERG and the DUP buy into this, their credibility will be shot to Hell. This is exactly the fudge that should never have been accepted by Mrs May. She is now in the line of fire.

Richard North 15/11/2018 link

Brexit: the invisible deal


I suppose one could get excited about the wondrous "breakthrough" on Brexit, news of which is dominating the media. There are however, a few small problems which could serve to dampen spirits just a little.

The first of these little problems concerning which is described as a "technical agreement" between the negotiators, is that no one in the UK - outside the very limited band of officials and cabinet ministers – has actually seen a copy. Nobody currently commenting in public on it, including (or especially) the media, has any certain idea of what's in it.

Secondly, considering that this is supposed to be an agreement between two parties, there is that very odd silence from Brussels, where we have yet to see an official statement. And we are seeing nothing like the situation of December last when the joint statement was published simultaneously on both the Commission and the UK Government's websites.

One can speculate on all sorts of reasons as to why this should be the case, and why this apparent deal is being handled in such an odd way, but the most obvious thing is that Mrs May wants to have the backing of (what's left of) her cabinet before going public, to give her a head start in the publicity stakes.

As with all these things though, the devil is in the detail and, as it stands, there isn't a lot of (reliable) detail to be going on with. We seem to have gravitated from a "no deal" scenario to an invisible deal, redolent of those secret treaties the great powers of old used to sign.

On reflection, I'm surprised Mrs May hasn't thought of this before. If she could keep the withdrawal agreement secret, then there can be no argument over the details and the MPs could cast their votes on what they think the deal means – which is probably what they're going to do anyway.

It stands to reason, though, that the sticking point(s) must have been resolved – or fudged in such a way as to pass muster. And from what we understand, the "backstop" is now "fixed" in such a way that a joint arbitration panel can rule on when it is no longer necessary, although the details are frustratingly vague – which is undoubtedly the intention.

Nevertheless, that which we do know (or don't) has been sufficient for the "usual suspects" to erupt in condemnation, branding the deal a betrayal.

This rather suggests that even if Mrs May gets her invisible deal past the cabinet, she is still going to meet considerable opposition from within her own party – to say nothing of the DUP which, as yet, has not been shown the agreed text.

With the general public – and us mere plebs – in exactly the same position, there is nothing left but, for those who feel so inclined, to await the crumbs from the media table, in the wake of an emergency cabinet meeting scheduled for today. One then presumes that, if Mrs May still has a functioning government, the EU will be prepared to set up its November European Council after all.

Oddly enough (or perhaps not), the Irish cabinet is also meeting today, actually at 9.30, beating the slothful Brits to the punch. They are not due to meet until the afternoon.

Until we all see the detail, though, there is not a great deal of point in adding more noise to the cacophony. If the deal actually goes to parliament, the legacy media will be in its seventh heaven, as it can play the Westminster votes game to its heart's content.

Meanwhile, of a more substantive nature, the Commission has published COM(2018) 880 final. It sets out the "Contingency Action Plan" as part of preparing for the withdrawal of the UK from the European Union. This has to be read in conjunction with COM(2018) 556 final/2, the update of which was published on 28 August 2018.

The document reminds us that, regardless of the nature of any withdrawal agreement, the UK will still become a third country when it leaves the EU and there will be considerable disruption, adding to the earlier document.  In that, Member States and private parties were being called upon to step up preparations for Brexit, following up a request by the European Council to intensify preparedness at all levels and for all outcomes. 

Of special interest to this blog – in view of the amount of coverage we've given the issue – the earlier COM notes that when the UK becomes a third country, and in the absence of an agreement providing otherwise, the strict EU rules in relation to sanitary and phytosanitary (SPS) conditions and controls on animals, plants and their products, will apply to the UK as any other third country.

It then states that trade can take place [only] once the sanitary and phytosanitary (SPS) conditions for the relevant agri-food products and the corresponding certification and control requirements are established.

Physical infrastructures, it says. will have to be put in place to allow all movements of live animals and animal products (including food of animal origin), and certain plants and plant products, to go through Border Inspection Posts (BIPs) at seaports, at airports or at land, as required by EU rules. The capacity of existing posts may need to be increased while new posts will also be necessary.

This only confirms what we've been saying for better than two years, but I am still not sure this message has percolated fully into the collective brains of government, parliament or the media. It is certainly the case that the implications haven't been fully understood. Such issues need to be given far greater emphasis then they are currently getting, as it is most unlikely that there will be a waiver on any of the provisions, which will apply even in the event of a free trade agreement being negotiated.

To an extent, the emphasis on Northern Ireland and the border has been a distraction. Border controls will have real impact on people's lives, and severely handicap our trade arrangements, yet very little planning seems to be in place to deal with the consequences.

In some respects, however, the situation is not going to be as bad as has been feared, and there is some provision for bilateral agreements between the UK and EU Member States. There is reference to this in the Commission's current COM, but the possibilities were highlighted in a recent report to the French Senate, translated by Guardian journalist Kim Wilshire.

The French government, it appears, would be prepared to continue arrangements for the mutual recognition of qualifications, and for agreements "to ensure the continuity of the flows of road transport of goods or persons".

Specifically, the intention of the Government is "to unilaterally recognise in France for a temporary period, on condition of reciprocity, the validity of the certificates and authorisations enjoyed by companies established in the United Kingdom, as well as the professional titles issued in the United Kingdom".

The stated purpose of this is to enable the carrying out of road transport operations of goods and persons by British carriers. This would be done by prolonging at least temporarily the conditions under which these companies operate on the French territory, in order to avoid any sudden interruption of flows to France or in transit on the territory of France.

The Senate report is careful to note that such provisions would only be taken in the absence of measures at Union level, which in many ways would be preferable. Should the UK have to rely on bilateral agreements, everything will have to be multiplied times 27, to give the same coverage that we currently enjoy.

In the French case, either an agreement with the European Union, or failing that, a bilateral agreement with France, would be necessary to ensure that European Union carriers, and in particular French carriers operating in the United Kingdom, enjoy the same advantages as France, those granted in the territory of the Union to British carriers.

Notably though, in COM(2018) 880, the Commission asks Member States to refrain from bilateral discussions and agreements with the UK, "which would undermine EU unity". The caveat, of course, is quite important, but it is also interesting to see that the French Government in some areas is acting unilaterally, while expecting reciprocity. These are not bilateral agreements as such, but coordinated unilateralism.

Such detail has been largely obscured by the "high politics" of the withdrawal agreement, and if we are getting to the point where this is to be resolved, then it would be a welcome relief, allowing us to start concentrating on the many practical issues that need to be settled before the essence of normality can be restored in our post-Brexit relations.

This unusual streak of optimism, though, should not conceal the fact that our earlier analyses have drawn the conclusion that there is no form of words in the withdrawal agreement that can simultaneously satisfy the UK government, the Westminster Parliament, the DUP and the EU.

For all the media hyperventilation, therefore, we are actually no further forward today than we were at the beginning of yesterday, and it remains to be seen whether Mrs May's deal is just a flash in the pan. But as long as it remains the "invisible deal" we can live in hope. It's a pity in a way that it has to be spoiled by such boring things as details.

Richard North 14/11/2018 link

Brexit: sending a message


There is a chance, of course, that we're being played. The negotiators from both sides, when they meet in Brussels, could be sitting at their screens playing video games. The final press release is already printed with just the date to add.

But there again, we could be looking at the biggest mess since we left the cat in the living room for 48 hours and forget to let it out. At least the product of that little disaster could be spread on the garden (not that there's been any shortage lately), which is more than can be said for what is actually being delivered by the combined efforts of Teams EU and UK.

Apparently, they were still talking at 2.45 on Sunday morning, packing up fifteen minutes before I posted on the blog. These part-timers do so feel they're hard done-by.

But so it came to pass that, at the General Affairs Council, Michel Barnier explained that "intense negotiating efforts continue", but "an agreement has not been reached yet". To no one's surprise, key issues remain under discussion, "in particular a solution to avoid a hard border between Ireland and Northern Ireland".

According to The Times, although no deal has been agreed, we do have the "architecture of a deal. It is clear to both sides what the political trade-offs are that will have to be made for an agreement to be reached.

Others are more blunt about what went on, asserting that the Brussels talks actually broke down after Olly Robbins told his opposite number that he could not "go back to the cabinet" with what the Commission was proposing.

So that's what it comes to. The two sides know what they need to agree, but do not yet know whether they can – but most likely they can't. And if that really is the case, we're up the proverbial creek and so far away from a paddle that even if we were holding an illustrated book on the history of paddles, we'd still be wondering what they were.

Nevertheless, it seems that there could be some movement. If The Times is to be believed, Mrs May is intending today to brief her cabinet on the state of play with the idea of "unlocking" a deal by Wednesday. Hope, as they say, springs eternal.

For all that, confusion abounds as the same newspaper has Michel Barnier angering Downing Street by claiming that today's meeting of the cabinet would be shown the parameters of an agreement.

What we should make of this is anybody's guess. But the Independent more or less confirms that there are problems. Yesterday lunchtime, it was reporting that Downing Street had dismissed any idea that a Brexit deal was close, saying any suggestion of an imminent agreement should be taken with "a bucket of salt".

As the story was updated, the same paper told us that "hopes are fading" for the November Council as Downing Street admitted "substantial issues" are still to be overcome between London and Brussels – as indicated by the General Affairs Council.

I guess the timelines are important here because the story has been developing with such speed that things could have changed, leaving The Times on the money. Or it could be that the Independent has got the real story and Mrs May has an empty slot in her diary for Wednesday.

There again, its updated story, The Times also had the "bucket of salt" quote, so it would appear that we really don't have a deal in the offing. At least, with that, we're back in familiar territory.

That is a territory all too familiar to the Guardian. It is telling us that Britain has all but given up on a special "Brexit summit" at the end of November. There remain, it says, too many sticking points to complete the talks in the time "originally hoped for".

This paper also confirms what is already evident from multiple sources, that there has been "no breakthrough at the moment". And that inevitably means that today's scheduled cabinet meeting could not possibly have been the substantive discussion allowing ministers to sign off the UK's Brexit negotiating position. The best that can happen is that the cabinet will note developments and discuss no-deal planning.

Just supposing, against all the odds, a Brexit deal could be signed off by the EU at the European Council on 13-14 December, that in any case would leave little time to squeeze in a parliamentary vote to ratify the agreement before Christmas.

This brings the Guardian into the fray with an editorial declaring that that Mrs May is looking for a deal "so vacuous that it will be meaningless". It is significant, the paper then remarks, that three out of four living former prime ministers – Mr Brown, Tony Blair and John Major – alight on a national plebiscite to solve the Brexit conundrum.

Since the Tories have spent months saying no deal is better than a bad deal, it goes on to say, the British public might, given the chance, take them at their word. If MPs were to refuse to support a Brexit plan, or to ask for more time to get a better deal or to vote for a general election, there would be chaos.

Under those "foreseeable circumstances", the Guardian thus declares, it would be foolish to rule out another referendum. And there we have another recruit to the referendum cause, even though there is no acknowledgement that more time would be needed for that purpose alone.

This is an interesting development where the only way out of the impasse is seen as a surrender to the forces of populism that supposedly got us into the mess in the first place – a referendum to catch a referendum, so to speak.

However, this may be all too late. Several sources, such as the this and this, have it that Dominic Raab, at the head of a group of "senior cabinet ministers" is ready to tell Mrs May that the current deal on offer from the EU is unacceptable. They want her to prepare the UK to leave with "no deal", unless she can secure further concessions.

This cabal apparently has the backing of former foreign secretary William Hague, arguing that the prime minister and her cabinet must start "fully preparing the country to leave without a deal".

Faced with serious cabinet opposition, and little chance of getting the current deal past the Westminster Parliament – and even less chance of getting any concessions out of Brussels - this may leave the prime minister with no option but to give way to the pressure.

In many respects, Mrs May is already halfway there, telling her audience at the Lord Mayor's Banquet in the City that she would not push for an agreement "at any cost". And at this stage, it would be very easy to engineer a "no deal" scenario by default.

All that has to happen is that Mrs May does exactly what she is doing at the moment – stalling. A succession of missed deadlines and inconclusive talks can bring her inexorably to the 29 March, when we drop out of the EU automatically.

The advantage for Mrs May is that the default option bypasses parliament and, to an extent, marginalises the cabinet. The automaticity means that no one has to decide anything. We just leave – something the "ultras" have always wanted.

The irony of all this is that, despite the number players in the field, all pushing their own agendas, no one is actually in control. Once Mrs May pressed the button to start the Article 50 countdown, having already closed down her options, it was almost pre-ordained that we were going to end up with a "no deal" Brexit.

What is so utterly bizarre about all this though is the idea that we can "full prepare" for this eventuality. Leaving without a deal essentially hands the initiative to Brussels and the Member States, with limited potential for reducing what will inevitably be major damage to the economy.

It is only because the government has played down the consequences of a "no deal" and the media has not joined all the dots, that this can even be contemplated. But far from an outside chance, it now has to be said that "no deal" looks to be the most likely outcome of the negotiations.

If then the government spends the next four months of so preparing, there is a possibility that we could end up with a "crypto deal", as a series of bridging deals – on issues such as aviation – are pencilled in for implementation shortly after we leave.

But, in all this uncertainty, there is one near-certainty: we are likely to see massive business flight as every operation that can jump ship looks for safer quarters on the continent. Responding to the oaf's "fuck business" remark earlier this year, somebody might even invest in some skywriting (pictured) to send a message, as they depart these shores.

Unfortunately, they may well be too late.

Richard North 13/11/2018 link

Brexit: walking the plank


While we are seeing an orgy of introspection amongst (some) remainers, obsessed with their second referendum and the unfairness of life, the universe and everything, the tragi-comedy of the Brexit soap opera continues apace.

As we left it yesterday, Mrs May had been told that EU Ambassadors had refused to accept her Schrödinger's backstop. EU negotiators, we learn, want the ECJ to have an automatic role in ruling on whether Britain could dump this mystical beast, something that bumps right up against the UK's red lines.

One report has EU officials and diplomats fearing that divisions within Mrs May's cabinet and wider splits in her party mean that she is unable to give her chief negotiator, Olly Robbins, a clear mandate allowing him to seal a deal over the next 48 hours.

But, if the Independent is to be believed, the situation is far worse than that. Confronted with the prospect of having absolutely nothing to offer, she has cancelled a cabinet meeting planned for today, simply because there is no longer a deal for her colleagues to approve – not that they would approve it even if there was a deal, which there isn't.

Actually, the Monday meeting was originally set for last Thursday – or even Wednesday. Then it became Friday and then it became today. And now it isn't any day soon, if ever.

Effectively, this means that the already slender chances of securing a November agreement with the EU have all but vanished. Although there is still the possibility of something happening at the routine Tuesday cabinet, the problems haven't gone away. Another day, or even another month, isn't enough to magic up an alternative.

Furthermore, the failure of the cabinet to deliver means that HMG will miss out on the General Affairs Council meeting today, when Michel Barnier will be updating the EU-27 foreign ministers on the state of play on the Brexit talks.

Missing this slot could prove to be the last straw which ensures there will be no November meeting. It would have been at the General Affairs Council that Barnier would have made his recommendations which would then have been conveyed to the European Council.

What this says that, after all this time – nearly 900 days from the referendum – we're basically no further forward. One could say that we're back where we started, except that, on reflection, Mrs May's plan never really got off the ground. The uncomprehending stupidity of her Lancaster House speech saw to that.

On the face of it, that leaves only one destination – a nice shiny "no deal" awaits us for 29 March, the "accidental Brexit" that we've long feared, arising simply because the players didn't know what else to do, or how to deliver it.

Even if the December Council then agrees to look at Brexit, that isn't going to be much help. After all this time, Mrs May hasn't been able to stitch up anything that will keep her own side and the EU negotiators happy. It seems hardly possible that another month is going to make the difference.

One assumes, though, that something has to break – if only because it must. But at this stage, looking down the tunnel into the unremitting darkness, there is not even that slight relief of a light in the distance that may or may not be a train coming in the other direction. The cupboard marked "deals" is bare – and so is the tunnel.

Still, though, the rhetoric spills out. One of those ever-helpful anonymous sources "close to the government" acknowledges the delay but says: "The fact is that we have got to get something that's right. We are not going to accept an outline deal at all costs and we are still working on it".

Optimistic that might sound to some, but it feels closer to a death knell. Mrs May has run out of options. If she can get anything past Brussels, she won't keep her own people on-side. The only chance is a miracle in the near future, where the ERG suddenly go all soft and cuddly, roll over and let Mrs May tickle their tummies.

And with that extremely unlikely to happen, as Brussels is giving her nothing she can use as leverage. Confirming this is yet another anonymous source. This one is a "senior UK government aide", who says he is "increasingly pessimistic" about the chances of the deal given the demands from Brussels in recent days. "They are pushing and pushing on everything", he says.

That would seem to suggest that, far from relaxing its grip, to give Mrs May a break, the EU is making no concessions. Whether this is last-minute game playing, or something more sinister, is difficult to tell. But with the talks going to the wire, they are leaving it perilously close if they do intend to broker a deal.

In fact – according to the Financial Times - Brussels is ramping up the pressure, demanding that that the UK concedes tough environmental targets and EU oversight of state aid rules as part of the "backstop". It's almost as if they can smell the blood in the water.

Add to that demands from Brussels on EU access to UK fishing waters – very much a dog-whistle issue for the "Ultras" – and it is almost as if the EU is deliberately trying to engineer a breakdown in Westminster.

Already, there are more threats of resignations from pro-EU ministers, in the wake of Jo Johnson, while Andrea Leadsom, Commons Leader, is flatly stating that Parliament would reject any attempt to give the EU control over the backstop. And since that is already a deal-breaker, there would appear to be no possible way of making progress.

Anywhere we look, therefore, there is negativity. It doesn't matter which source you look at, there is no comfort to be had, while the oaf writes that the government seems to be on the verge of total surrender and is calling for a "cabinet mutiny".

Needless to say, he is spewing out his usual gibberish, arguing that "we get rid of the backstop; we agree with the EU, the Irish and the commission that there is no need for a hard border in Ireland; and we get on with a SuperCanada free trade deal".

It is difficult to believe that anybody could be quite so stupid, ignoring the fact that the EU's central requirement is for a "backstop", without which nothing else can be agreed. One wonders how many times the EU has to say it before it finally sinks in to the "Ultra" tendency.

However, that has not stopped Nick boles disinterring his failed "Norway for Now " proposal, relying on the prestige of "leading lawyers" to come up with something just as inane as the original.

Still wrongly calling Art 112 an "emergency brake" – thereby illustrating his lack of grasp of the subject - he also fails once again to understand that the EEA Agreement is an adaptive framework and, to make it work will require a comprehensive skein of amendments to the EEA Agreement.

Instead, he seems to think that retaining existing EU arrangements (despite being outside the EU) can bridge the gap between leaving the EU and setting up a "new set of agreements" with the EU, inside his "Canada" option. In other words, he now wants to be in the EEA but not ruled by the EEA.

At least Mr Boles is not challenging the general presumption that the very last thing you can rely on from Conservative Party MPs is intellectual coherence. His "Norway for Now" idea has even less chance of being adopted than Mrs May's own rejected "backstop" proposals.

More prominent though is the talk of mutiny, and with that in the air, one has a mental picture of Mrs May at the point of a cutlass, walking the plank, ready to take the dive into shark-infested waters.

This is much more than just a bad day at the office. But, if the alternative is following the path set by Johnson (or Boles for that matter), one can almost imagine her doing it willingly.

Richard North 12/11/2018 link

Brexit: getting ahead?


I have it on very good authority from somebody who has met him several times, that Jo Johnson, erstwhile transport minister, is as stupid as his brother – stupid in the way that only intelligent men can be.

This is a man who, until yesterday, most of us didn't even know existed – much less that he was a minister. And now he has resigned in protest at Mrs May's handling of Brexit, declaring her approach to Brexit to be "a failure on a scale not seen since Suez".

His parting shot is to demand a referendum in which the people would be asked to confirm their decision to leave the EU. If they chose to do that, they would then be asked to give them the final say on whether we leave with the prime minister's deal or without it.

Apart from anything else, this is a complex, conditional question sequence which could not give a clear-cut result. It could thus not pass the "intelligibility" test so the Electoral Commission could never agree it, even if a referendum was possible – which it isn't.

One really does weary of this. For there to be a referendum, at the very least six months would be needed, although probably longer. David Cameron's Brexit referendum took just over a year to get to the ballot box.

With less then five months to go and a deal unlikely now to be agreed by December – if then – the EU would have to agree an extension to the Article 50 period. We cannot assume that would happen. And if there is no agreement, then we would end up having a referendum on whether to leave, after we had already left.

What I think would be particularly significant is this context is a another matter, which has hardly been discussed. That is the question of which groups would be selected to lead the official campaigns. And, with two questions (if allowed), there would be two campaigns.

You could, for instance, have people who wanted to remain in the EU but, if the majority wanted to leave, they would then vote for Mrs May's deal. You could have remainers who would vote against both but you could also have leavers with similar mixed motives – those who could be either for or against the deal.

As a result, there would have to be one campaign on whether to leave the EU, and another on whether to support the deal. Specifically, you could not expect those who wanted to leave necessarily to support the deal,

The official campaigns for the 2016 referendum have, of course, been disbanded. The "peoples' vote" group might be turned into a remainer campaign, but who would represent the leavers? Vote Leave has been disbanded and, in any case, is discredited. It could not take up the cudgels. "Leave means Leave" might qualify, but might not since it is largely a faction within the Conservative Party.

Without official campaign groups, though, could there be a free and fair referendum? Yet, how long would it take to get the groups up and running, and then for them to prepare their submissions?

All this though is entirely academic. If nothing else, Mrs May is known for her stubbornness. And her office's response to Jo Johnson's demands has been unequivocal. " Britain will not have a second referendum on its membership of the European Union under any circumstances", it says.

Nor can referendum supporters expect any succour from Labour leader, Jeremy Corbyn. He was interviewed yesterday by Der Spiegel, when he was asked: "If you could stop Brexit, would you?" The terse response was as unequivocal as you can get: "We can't stop it. The referendum took place. Article 50 has been triggered. What we can do is recognise the reasons why people voted Leave".

Basically, the idea of another referendum is dead in the water. Even if it could happen, the two leaders of the major parties aren't going to lift a finger to make it happen. The "Peoples' Vote" people are wasting their time and money.

In fact, though, this isn't anything to do with the "people". Asked in a poll to choose between options, only nine percent of respondents went for a new vote on UK membership. When asked a straight question on whether they want another referendum once the Brexit negotiations are over, 43 percent said yes, 35 percent no and 22 percent didn't know. There is no clear margin to support action.

That, therefore, puts us back where we've always been – waiting for Mrs May to come up with a proposal which will be acceptable to the EU. And here we’re still marching up and down those hills to the tune of the Grand Old Duke of York.

On the way up the hill, we heard from Leo Varadkar who considered that a deal was possible "within weeks", even if it did not amount to a "clean break". Talks, he said, would have to continue. The less said about the detail the better. 

The main event, though, has been Mrs May caught out admitting in a leaked letter that there would have to be a "wet" border between Northern Ireland and the rest of the UK, something she had always said would be completely unacceptable. Predictably, this has precipitated a showdown as DUP leader Arlene Foster accuses the prime minister of breaking her promises.

She has made it clear that the DUP could not support a deal which annexes Northern Ireland from the rest of the United Kingdom. "We will have a different regulatory regime from the rest of the United Kingdom and essentially there is going to be a border down the Irish sea and no unionist would be able to support that", she said.

That now puts any vote on the deal in parliament at risk, which means that even if the prime minister could get something past the EU, it may not survive a mauling in Westminster.

But getting it past the EU has just got harder as Ambassadors for the EU27, including France and Germany, have told the Commission that they want of look at the text of any deal reached with the UK, before it can be made public and a special European Council is called.

That is reckoned to add another week to the process, making it even less likely that the Heads of State and Governments can get together by 25 November, this being the last date considered practical for the extra Council.

If it was at all possible, the plot gets thicker, with telling us that cabinet ministers have drawn up a secret no deal "Plan B" for adoption if Westminster votes down the May deal – if we ever get that far. Sky News also has the story (which The Sun claims as an "exclusive"), which amounts to the UK buying a two-year transition period off the EU for the princely sum of £18 billion.

This, however, has not been put to Brussels, and since there is no proposal to make up the rest of the dosh which was expected, there seems little prospect of it going ahead. One wonders whether the authors of this scheme have ever heard M. Barnier say that there could be no transition period without a withdrawal agreement, which in turn requires agreement on the backstop.

And even there, the dark clouds are gathering over No.10 as it is reported that the EU-27 are to reject Mrs May's idea for independent arbitration, to enable the "non-permanent" backstop to be ended non-unilaterally.

We are thus left with the same old, same old impasse with no one really knowing what on earth is going on, and nobody ably to tell whether a super-king-size rabbit is suddenly going to be extracted from a hat. If I was Mrs May, I'd definitely be planning to leave the country under an assumed name.

But then, perhaps that's what we're supposed to think. A far too candid senior EU source suggests that "divergent and possibly contradictory narratives" about a deal are probably deliberate. "If the British want to deceive their public about what it means, that's up to them", he says. "Maybe that's what it takes".

The things people will do to get ahead. Maybe it's a good idea to keep a few spare in case of emergencies.

Richard North 10/11/2018 link

Brexit: retreat to the bunker?


Of late, as I sit down to write the post for my morning readers, I wonder to myself whether it is even possible to write another post on Brexit, or whether tonight is the night when I leave a blank space, having given up the struggle to make sense of what is going on.

The trick, I find, is to write the same way you build a Bailey Bridge. You start with a "launching nose" attached to the bridge, which is run across to the other side to stop the whole assembly dropping onto the gap. Only when the bridge is firmly anchored on both sides is the "nose" removed and traffic allowed to pass.

Thus, just to get going, I can find myself writing any old thing in the knowledge that, once the piece is complete I can chop off the beginning – my "nose" – and post the completed piece in the hope that the rest is relatively coherent.

However, when one confronts the wreckage of Mrs May's Brexit strategy – if that's what it is – I am gripped by the overpowering urge to close down the computer and walk away, returning only after 29 March out of a sense of curiosity, to see what actually happened.

To explain why this urge should suddenly be so overpowering, one must reach into the box of well-worn clichés – so heavily used to the point where they must now be completely worn out. With this aid, one has to remark of yesterday's events that you simply couldn't make it up. Bizarre has become the new normal.

As we left it with yesterday's overnight post, Mrs May was preparing her normal weekly cabinet meeting, but one about which there had been much speculation on whether she was about to "bounce" her colleagues with a new plan.

This, as it turned out, was pure speculation (as was pretty obvious at the time) but, as the story developed through yesterday, the idea emerged that the race was on to get a final agreement with the EU at a special European Council which had been pencilled in for 17 November.

To that effect, the narrative had it that Mrs May had to clear her proposals with the cabinet by the end of the week, this being the last possible moment before it had to be submitted to M. Barnier's team so that a recommendation (via the General Affairs Council) could go to the Council for its deliberations.

Thus, with nothing settled at yesterday's cabinet, we were warned to expect an "emergency" meeting on either the Thursday (today) or Friday – or Monday at the very latest - at which a proposal would be "signed off" in preparation for its urgent dispatch to Brussels.

So it came to pass that it was being reported by yesterday afternoon that e-mails had been sent to all cabinet members with copies of a draft Brexit withdrawal agreement. This news came from "Whitehall" sources, and the drama was set in place.

However, only shortly afterwards we were appraised of "No.10 sources" which told us that the new draft did not include any details on the Irish backstop. This, apparently, had not yet been agreed – although by whom it was not said. For all that, the e-mail to Cabinet ministers had not made this clear, but it was enough to put back the "emergency" meeting to next week.

Then, coming in from left field was another little sub-plot: a "row" had developed over the disclosure of legal advice given to the government over the backstop, on the basis that, if legal advice was referred to in cabinet papers, the full text should be attached.

This seems to centre on the view of Geoffrey Cox, the attorney general. He had been telling fellow ministers that a UK insistence on unilateral termination of the backstop would put the whole deal at risk, as the EU would most likely reject it – something the Irish in particular have been keen to emphasise.

With this unresolved, the chances of a November Council were fading like an autumn mist, leading Leo Varadkar to observe that, with every day that passes, "the possibility of having a special summit in November becomes less likely".

The Irish prime minister nevertheless reminded us that there was a Council scheduled for 13-14 December, which meant a deal could be settled in the first two weeks of the month. "But I think beyond that you're into the New Year, which I think wouldn't be a good thing", Varadkar added – in what must qualify for "statement of the bleedin' obvious" of the week.

Enter now the famous anonymous "EU sources" in Brussels. The Guardian has it that they are "deeply sceptical" of the notion that negotiations are on the brink of a breakthrough. Putting the situation in perspective, one senior official said it would be a mistake to "underestimate the incompatibility of the views" of the two negotiating teams.

And there it is – round and round we go, with each day bringing us no further forward after acres of text and hourly alarums. At least the popular media has the US mid-term elections to entertain their journos, but for Brexit watchers, the cupboard is bare.

Although I have no view on the coverage of US events by the UK media, one can only hope (without any great expectations) that it is more coherent than the stuff we are getting on Brexit.

The current "take" of The Times, for instance, has Brexiteers fearing a "single market by the backdoor", with ministers "increasingly concerned" that Mrs May is about to announce that Britain will be forced to stick with EU rules on state aid, workers' rights and the environment.

According to the paper, Whitehall sources are saying that this was the price the EU was understood to be seeking "to allow a customs agreement as part of the Northern Ireland backstop".

The words to focus on here are "customs agreement" as we then learn that cabinet ministers are pushing Mrs May to clarify the position. Some EU countries, we are told, are demanding the changes because they want to maintain a "level playing field" with the UK after Brexit to ensure that Britain cannot benefit from a customs union without the obligations the rest of the 27 must follow.

Now, with a "customs union" added to the narrative, we get input from transport secretary Chris Grayling. He is understood to have told Mrs May he was concerned that this "would mean a single market through the backdoor".

Thus, in a mere three paragraphs of a media report, we have "customs agreement", "customs union" and "single market", all being used more or less interchangeably, with neither definitions nor distinctions made between the terms.

The Guardian is no better, with a self-important editorial. Here, the paper dribbles about the "sticking point", which it rightly observes "has not changed for months", defined as "how to ensure a frictionless Irish border when the UK wants to leave the single market and the customs union". The solution, the paper then says - as was long ago apparent – "is to stay in a customs union after all".

So, it seems, in the Guardian's considered view, the answer to securing frictionless trade across the Irish border is "to stay in a customs union". And by such means is the whole sweep of history ignored. The EU's customs union opened up all the border and there was no reason to create a Single Market. The customs union did it all.

With this level of comprehension, poisoning the entire political food chain, it is hardly surprising that there is an "incompatibility of the views" between the UK and EU negotiators. Even if they were all speaking the same language, the words would have different meanings. The divide must be unbridgeable – even with a "launching nose".

In that sense, it will take far more than a Bailey Bridge, or any other sort of bridge, to bring the two sides together – they are barely on the same planet. We need to go back and write a common dictionary, where all the words have meanings and they mean the same things to the different players in this drama.

Only then can there be meaningful negotiations and media reports that make any sense. At the moment, we are still getting noise – which gets louder by the day. It soon must be time to don the ear defenders and retreat to the bunker. Meanwhile, the Commission is stepping up preparations for a "no deal" Brexit.

Richard North 08/11/2018 link

Brexit: alphabet soup


As we work our way wearily into the week, the single theme with which we started the week has solidified: there is no deal in the offing, no breakthrough – no magic wand.

But as the hours and days pass, not even the agenda is clear any more (if it ever was). Media chatter has clustered around the question of a review clause - in much the same way bluebottles are drawn to a fresh dropping – while Mrs May's cabinet has woken to a new-found determination that a deal must be found by the end of the week.

In yesterday's piece, though, there emerged not one key issue but two. The longevity of the backstop is one – which the review clause is supposed to resolve – but the other is the nature of the regulatory checks on goods passing between Britain and Northern Ireland.

Clearly, this is highly contentious. Following yesterday's cabinet meeting No 10 said the main sticking point remained how to guarantee no new checks on goods at the Irish border. Talks on how to guarantee this, it is said, have been "constructive".

That there is an ongoing discussion about the checks pre-supposes that the border issue is halfway settled. We assume that there will be some form of regulatory alignment between Northern Ireland and the EU, allowing for frictionless trade, while the Single Market is protected by those regulatory checks, the nature of which has yet to be agreed.

Quite where the customs union comes in is difficult to discern, especially when we get sundry politicians talking about its role in ensuring frictionless trade – which, as Turkish experience illustrates, is hardly complete.

Given the level of confusion, it is not even clear whether we expect to be dealing with the or a customs union or even whether we're dealing with a totally different animal called a "temporary customs arrangement" (TCA), the nature of which has yet to be defined, much less agreed.

Beset by a lack of coherence, it is very easy to fall into the trap of over-analysing such data as are available, simply because some sort of narrative is expected. But the danger is that you come up with conclusions which are not supportable. On the other hand, to declare that one doesn't have the first idea what is going on – in common with just about everybody else – is not very satisfactory.

One thing that does seem to be clear, though, is that Mrs May seems to be on the way to repeating the error she made with the notorious Chequers plan, drawing up a new proposal which will satisfy (she hopes) her domestic critics, without reference to Brussels.

You would have though that Mrs May might have learnt her lesson by now, and sought agreement (in principle at least) from Brussels before putting it to her cabinet colleagues – instead of the other way round. That she has not is illustrated by the proverbial tale of two cities.

In the Brussels corner, we have Barnier speaking to the Belgian broadcaster RTBF. He then declared: "I am not able to tell you that we are close to an agreement because there is a real point of divergence".

Later, in Bratislava, he tweeted that we need an "all-weather backstop" and an "ambitious future relationship", followed by the almost plaintive lament: "We are not there yet". In a fuller version delivered to reporters, he also cautioned against believing everything you read, adding: "We have more work to do".

This is counterbalanced by London, where the mood seems entirely different. From there we are told that: "Hopes for Brexit deal grow with 'major step' over border issue", with Mrs May's aides believing that Brexiters might accept a plan to replace Northern Ireland-only backstop with UK-wide one.

On that basis, despite the lament from Barnier, we are supposed to accept that Mrs May's hopes of securing a Brexit withdrawal agreement took "a step forward" after it emerged that ministers were working up proposals for a "review mechanism" for the Irish backstop - a "major step" in removing the final major sticking point in the Brexit negotiations.

Such is the level of optimism that Mrs May has told senior ministers to clear their diaries for an emergency cabinet meeting "within days" after she won partial backing for a compromise proposal on Ireland. She has promised to give ministers a chance to sign-off any further concessions before they are offered to Brussels.

Notwithstanding that there is more than one "major sticking point", it is very clear that M. Barnier is not in the loop, but neither does London seem to be listening to the EU's chief negotiator. Instead, we get meaningless jargon leavened by a glorious alphabet soup serving up yet more three-letter acronyms to play with, over which there is absolutely no agreement as to their meaning.

This, of course, allows knowing commentators to talk from an apparently elevated level of consciousness, to dispense their wisdom on events yet to happen, of which no one can possibly have a grasp.

In this context, we have discussion on the more-or-less new phrasing describing a "temporary customs arrangement" when, in truth, there is hardly a man (or woman) alive who can confidently assert they know what it means, while no two people could actually accept a single definition, much less define its scope.

Yet somehow, with the deadline for a November European Council closing in, we are supposed to accept that complex and as-yet undefined issues can be resolved in a matter of moments, all so the parties can gleefully assemble to rubber stamp another great victory for common sense.

The reality is though, that when parties start throwing vague concepts into the ring at this late stage of a negotiation, we are not looking at answers but at the diplomatic equivalent of a smokescreen, all to conceal the lack of progress and to deflect blame for the consequences.

With that, there is no need for, or value in, hair-splitting analyses – especially those based on Secret Squirrel sources. Sometimes the big picture can tell you all you need to know – that which we've known for some time: the Brexit talks are going nowhere.

This, of course, has been the case since Mrs May's Lancaster House speech in January 2017. Only now are we beginning to confront the consequences, but the die was cast all that time ago.

Despite that, Simon Coveney thinks that a "no deal" scenario is unlikely. "No one wants a no deal endgame. Everyone loses", he said last night. This, however, was not the view of DUP MP Jeffrey Donaldson. He has said that we appear to be heading for a "no-deal", and warns that such an outcome "will have serious consequences for economy of Irish Republic".

However, those (on both sides of the Irish Sea) who are resting their hopes on the UK government revoking its Article 50 notice may be disappointed.

With a test case due to be heard before the ECJ at the end of this month, as to whether the UK is entitled to take unilateral action, the government has released its observations which it intends to place before the court.

In short, the government intends to contest the admissibility of these questions put to the court, on the grounds that they amount to a request for an "advisory opinion", on the basis that the ECJ has long refused to answer hypothetical questions or to provide advisory opinions.

The questions are regarded as hypothetical for two reasons. First – and damningly - the UK does not intend to revoke the notice, so any such revocation is not in any sense meaningfully in prospect. Secondly, even if the EU-27 did take the view that their consent was required, they might agree to it. Thus, says the government, the terms of any "dispute" are theoretical without the full facts and context.

With Mrs May equally adamant that she is not going to allow a referendum on any deal reached – and there cannot be a referendum (or a parliamentary vote) on a "no deal", it looks as if the opt-outs could be on their way to being shut down.

There may even come a point when the continuity remainers realise the futility of trying to reverse the vote and start concentrating – far too late – on options for a managed Brexit.

The one thing in our favour is that the consequences of a "no deal" are so awful that when, faced with the prospect of it actually happening, the parties might find the compromises necessary to agree a deal. As long as it is not then sabotaged by either the European or the Westminster parliaments, there would be a chance of avoiding the worst.

But, as M. Barnier says, "we are not there yet".

Richard North 07/11/2018 link

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