Some months ago during a meeting of the European Parliament’s Conference of Presidents – which I sometimes attend as a substitute for EFDD Group Leader Nigel Farage – there was a report back on Brexit talks by the Parliament’s Brexit steering group.
One member hinted that keeping open routes to get the UK back into the European Union had been made a very high priority by both the EU and UK sides in the talks. At the time (pre-Chequers), I thought this to be something of a long shot. But it lodged in my mind nonetheless.
Then I heard something similar just two weeks ago from another senior EU source. This time the wording was more explicit and the concept far more developed. The plan was to get the UK back into full EU membership in time for the European Parliamentary elections of 2024, meaning we would have only technically been outside for one term, 2019-2024.
Further comments suggested that a “purgatory backstop” would be used to persuade the UK to reapply for membership rather than languish in the equivalent of EU solitary confinement on a diet of bread and water. Far from having left the prison, we would have to beg to go back on the wing and probably only get accepted on inferior terms – no budget rebate, fewer national vetoes – and possibly an undertaking to be absorbed into the euro and Schengen in due course too.
Our fate would also serve as a perfect example to other troublesome member states – especially Italy and the smaller countries of central Europe – as to what would unfold when a country challenged the writ of Brussels.
Now, in general, I do not go a bundle on conspiracy theories. I am not one to blame unexpected political developments on Bilderberg Group meetings or the like. But when the issue at stake is as momentous as the future path of the United Kingdom within the international order and when a tightly-knit establishment is of one mind and yet a majority voted the opposite way, then means, motive and opportunity all point to the possibility of an organised and sophisticated subversion of the wishes of the people.
When someone as calm, analytical, well-connected and balanced as Michael Portillo declares, as he has, that there has been a conspiracy against Brexit then one’s mind is certainly opened up to that possibility. The constant stream of pro-EU British politicians who have been over to Brussels for unofficial private talks with EU chief negotiator Michel Barnier merely strengthens the suspicion.
And further developments in recent days have convinced me that there is now a private understanding between leading figures in the UK political and civil service establishment on the one hand and the Brussels elite on the other that a preferred pathway to the UK rejoining is now in place.
A key moment came when Barnier raised at the weekend the prospect of an extension to the so-called “transition period” during which Britain sits as a de facto EU state – subject to all the controls and policies of the EU but without political representation – until the end of December 2022. That would mean moving into the indefinite backstop, with no unilateral right to leave it, at the start of 2023.
This timing is key because it will mean the relationship between the UK and the EU will not have been settled and will dominate a British general election that must take place by the middle of 2022. In such an election, the leading pro-EU force, the Labour Party, could blame the failure to enact Brexit and the looming purgatory of the backstop fairly and squarely on the Conservatives.
What would be more natural than for it to offer a new referendum to the British people within the first year: shall we settle into the backstop as a vassal state or rejoin the EU as a full member? In such a Hobson’s Choice referendum I doubt I would vote at all. But even I could see the logic of preferring to rejoin the EU – which a country theoretically has the right to leave – rather than being stuck in the humiliating backstop with no way out.
Up until the publication of Theresa May’s withdrawal agreement, I had always thought that one secure advantage even of Brexit In Name Only would be that pro-EU forces would have to switch from being Remainers to Rejoiners – and that given only zealots would wish to reopen this can of worms anytime soon, they would find that a very hard sell.
And yet the Remainer Theresa May has managed to create an attainable path for them by making her own version of Brexit so appalling that even Brexiteers are saying being in the EU is better.
And what serviceable proposition could the Tories put in their own manifesto at the next election to compete for votes on this dominant issue? On the working assumption that May has been succeeded either by another figure who campaigned for Remain in 2016 or a lukewarm Leaver, there is every chance that the Conservatives too would support giving the public an “emergency brake” on the Brexit process in a new referendum. After all, they would be able to point out that the referendum mandate was now six years old and that a lot of water had flowed under the political bridge since then.
What the Tories will certainly not be able to do is promise to take the UK out of the backstop and out of the customs union and into a future of new dynamic trade deals with the sunrise parts of the global economy. They will have precluded that possibility via their own undertakings to the EU during the present Parliament. They will have locked our country into a legally-enforceable trap and could only promise a credible way out of it with the goodwill and support of the European Commission and other EU institutions. And the only way the EU will ever allow us out is if we rejoin.
As Sabine Weyand – Mr Barnier’s German deputy – recently told reporters, the withdrawal agreement hands the EU sufficient leverage to ensure the UK remains in permanent high alignment with it.
So as the House of Commons’ “meaningful vote” on Mrs May’s withdrawal agreement draws near, it is clearer than ever that nobody who is sincere about supporting Brexit should have anything to do with her plan.
It will inexorably lead not to taking back control, but to a further diminution of UK national sovereignty, below the eight per cent voting weight we have in the Council of Ministers or the 10 per cent in the European Parliament to zero per cent in transition and then in the backstop.
And if we rejoin instead, we will be going back to an EU that is pushing ahead fast with setting up its own army and will have abolished more national vetoes thanks to powers that Jean-Claude Juncker has referred to as unused “treasure of the Lisbon Treaty”.
That a British Prime Minister could have played a central role in locking the UK onto such a path after having stood at the general election on a down-the-line Brexit manifesto is profoundly shocking. Her culpability is complete. Remember she went behind the backs of two successive Brexit Secretaries to make far-reaching concessions to Brussels and twice tried to bounce her Cabinet into signing up to her plans in ruthlessly plotted manipulations at Chequers in the summer and 10 Downing Street last week.
The role of the Chancellor in not only blocking most preparations for a no-deal Brexit but also organising big business warnings of Armageddon should we leave without an agreement has also been crucial. But it can now be seen that the idea he was ever being “slapped down” by a Prime Minister committed to delivering on her Brexit promises was always an elaborate con.
The only chance we now have of rescuing Brexit is if MPs vote down Mrs May’s deal and the Government is forced to switch course to preparing for a WTO Brexit (by the way, in what state are those contracts with ferry companies that we were told would need to be signed by the end of last week to make such a course viable?).
Mrs May’s threat – sometimes uttered, sometimes withdrawn – that voting down her deal may lead to no Brexit at all should not put off a single Brexiteer. No Brexit at all would force into the open the establishment conspiracy against Brexit, leave us with our 8-10 per cent residual sovereignty intact in the EU, save us a bundle of money and give us every chance of seeing a genuinely pro-Brexit Prime Minister take office with a landslide majority and on a mission to right the wrong in 2022.
Certainly a no-deal Brexit at the end of next March will now be bumpier in the short-term than it need have been had it been properly planned for over an extended period. But as one wag put it over the weekend, on 4th July 1776 the United States of America crashed out of the British Empire without a deal. And it has never looked back.
Thanks to the political venality of Theresa May, the choice facing our country is between freedom and serfdom.
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After the end, the beginning. The long months of talks in Brussels have brought forth a draft withdrawal agreement to leave the European Union – all 585 pages of it. Amid the drama, the essential themes are clear. There will be a backstop agreement to the deal without an end date and with no ability for the UK to extricate ourselves without the consent of a third party. And there will be a grave threat to the Union.
Northern Ireland will find itself in a different regulatory regime to the rest of our country – to use the analogy that is being deployed about the “backstop within a backstop”, it will be in the deep end of the swimming pool while the rest of us are only paddling up to our knees. This represents gold dust for the Scottish Nationalists, who will seize on a different arrangement for one part of the country to demand a separate arrangement for Scotland.
We will be asked to sign up to all this, and hand over £39 thousand million, in exchange for a flimsy 15-page “political declaration” about the hoped-for trade relationship that would lie beyond this, should we ever be able to escape. That political declaration will be drafted to mean all things to all men, but will lead inexorably to the ultra-high alignment agreed at Chequers in July rather than the Canada-style free trade deal we should be aiming for. There will be so-called “non-regression clauses” to ensure the UK cannot out-compete the EU. This would scupper our hopes of being a global trading titan and bind us into EU manufacturing rules in perpetuity. As humiliations go, this would be complete and unendurable. The Prime Minister will have unerringly delivered a deal that delivers none of the benefits of leaving the EU and none of the benefits of remaining.
85 years ago, Churchill warned:
“All down the centuries, one peculiarity of the English people has cost them dear. We have always thrown away after a victory the greater part of the advantages we have gained in the struggle. The worst difficulties from which we suffer do not come from without. They come from within… from the mood of unwarrantable self-abasement into which we have been cast by a powerful section of our own intellectuals. They come from the acceptance of defeatist doctrines by a large proportion of our politicians… Nothing can save England if she will not save herself. If we lose faith in ourselves, in our capacity to guide and govern, if we lose our will to live, then indeed our story is told.”
Such will be the legacy of Brexit if this deal goes through. The brave decision of the British people to leave the European Union, taken in the largest democratic vote in our history, will have been reduced in two years to a shameful and squalid surrender. This must be resisted at all costs, and I have little doubt that the House of Commons will indeed defeat the deal should matters go that far.
The burning question will then arise: what next?
A deal may still be salvageable, based around the broad and generous offer made by European Council President Donald Tusk in March. This would be an advanced free trade agreement, encompassing services and covering all sectors with zero tariffs and no quantitative limitations. Alongside this the UK would offer deep security cooperation and mutual recognition of practical issues from aviation regulations to driving licences. The EU’s offer, of course, was made to Great Britain and not the whole of the UK. The EU was not prepared to extend its offer to Northern Ireland – hence so much of the tortuous negotiation that has ensued.
But there is a way to deliver such an agreement, in the form of a free-standing treaty on trade facilitation between the UK and Ireland to be negotiated in parallel to the wider negotiations, as it surely could be. Such a treaty would deliver an invisible border that would satisfy WTO rules and could be referenced in the wider UK-EU free trade agreement. There would be no hard border and no need for a backstop beyond this.
This seems to me to represent a deal that could secure sufficient votes to satisfy Brussels and pass the House of Commons. In tandem with this, an immense national effort must be set in motion so that the UK Government and businesses prepare themselves day and night between now and 29th March next year for a no-deal scenario. Every moment that passes without such an effort is a moment wasted, and weakens our hand in securing the good Brexit deal that our country expects and deserves.
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Sentiment about a Brexit deal fluctuates wildly almost by the hour. Whatever the current state of speculation, we surely have to prepare ourselves for what happens if Chequers falls over.
I know this is anathema to many Brexiteers. But my personal view is that while No Deal would likely be fine in the long run, in the short term it would be an embarrassing economic fiasco. The consumer story from hell. It would be to Brexit what Gerald Ratner was to cut-price jewellery.
Instead of going down that risky route, I want to ask BrexitCentral readers to consider falling back on the UK’s membership of the European Economic Area. This is the so-called “Norway then Canada” or “Norway for Now” strategy advocated by myself, Nick Boles MP and others.
Please hear me out. It is quite possible that neither Chequers, nor “No Deal” nor trading on World Trade Organisation terms, nor a second referendum will pass in Parliament. In which case, the European Economic Area will be the only thing left on the table. Should we not seize it?
Far from reducing Britain to a “fax democracy”, where we have to pay huge sums into the EU and yet have no say over the rules and regulations passed in Brussels, the EEA is a commercial treaty between sovereign nations and could be a good resting point, outside the EU, the Common Agricultural Policy, the Common Fisheries Policy and the jurisdiction of the European Court of Justice – but with useful legal and economic options. We would effectively be members of the Single Market, but with sovereign protections.
George Yarrow, the Oxford professor who is the intellectual godfather of the strategy, also estimates that our payments to the EU – which would be limited to participating in relevant programmes – would fall from around £9.5bn to £1.5bn.
What is more, we are already contracting parties to the EEA. It is not true, as some have asserted, that we are leaving by virtue of having given notice under Article 50 to leave the EU. The EEA is a separate treaty, which we have signed on our own right, and has its own withdrawal arrangements. If we want to make the EEA treaty operative, all we have to do is to apply to the related European Free Trade Association (EFTA). This is the other “governance pillar” to the EEA.
There is not much the EU could do to stop us exercising our treaty rights without falling foul of a higher law, the 1969 Vienna Convention on the Law of Treaties. Don’t take my word for it. Take the word of Sir Richard Aikens, a former appeal court judge, on the Briefings for Brexit website. If the EU cut up rough, we could take them to the International Court of Justice (ICJ).
As for the infamous Irish backstop, the EEA would put in place the legal structure to make the technical border solution suggested by David Davis work. As we would be members of the Single Market, it would anyway be unnecessary.
On any measure, the EEA is also superior to the proposed transition arrangements. Inside the EEA we would have decision-shaping rights, and also the right to adapt and veto new legislation. We would, anyway, only be in the Single Market which accounts for just 28% of EU legislation.
If, while in the EEA, there was a dispute with the EU, it would be adjudicated by the EFTA Court, on which we would have two out of five judges. Contrary to myth, it is not bound by the ECJ. They do have to develop a homogenous area of law together but frequently the EFTA Court has disagreed with the ECJ.
Nor is it true that we would not be able to control freedom of movement. The EEA Treaty focuses in freedom of movement of workers and includes various measures to impose limits and restrictions, including an emergency break (as used by Liechtenstein). There is no common citizenship and British passports would be back.
Let’s be honest. It isn’t perfect. And it seems to me the biggest risk, which some Brexiteers have already pointed out, is we get stuck. Like Income Tax (introduced temporarily in 1798, it remains with us) the EEA might perpetuate itself. Some have called for a hard legislative commitment to leave before 2021.
However, I would contend that is a glass half empty way of looking at the EEA treaty. The exit mechanism, giving one year’s notice under Article 127, is much more permissive than the Article 50 process. Rather than put a hard stop on our departure date, which creates another cliff edge against UK interests and upsets the Norwegians, we should commit to a review and a break clause to be voted on by Parliament. If it did not work, we could leave to join a Canada-style free trade agreement. And in the meantime it might evolve into a congenial home for us.
The question to which the EEA is the answer is clear. So let me repeat it. What happens if Chequers falls over and the other options are blocked too? It is hard to see any other realistic, legally deliverable alternative. I urge Brexiteers not to rule it out.
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So here we are in the last days of the negotiations. Our Government stands on one side of a rhetorical gulf, terrified of No Deal and having made no significant preparation for it, its finest minds baffled by the impossible Irish Rubik’s Cube constructed for it by the EU.
On the other stands the EU, sure from the outset that the UK would, in its delicate phrase, “take dictation” and now convinced that the strategy will pay off. No doubt the British officials leading the negotiations are assuring the Government that a deal can still be pulled off.
But what a “deal” it will be: a binding treaty in which the UK gives away large amounts of money and what seems to be a perpetual lien on Northern Ireland and in exchange gets an expensive “transition” period (with an option, it seems, to pay more for an even longer one) and a non-binding “framework” (possibly only a few pages long) that will guide the trade talks we will begin (but can hardly hope to conclude) in the never-ending “transition” period. During that “transition” we shall be fully subject to EU law but have no representation in its legislature (in possible contravention of the European Convention on Human Rights, but what the heck).
This will be mendaciously described by some as a “good deal for Britain that delivers the referendum result” and the Government will set out to frighten and cajole MPs of all parties into supporting it, with the clock ticking and the fanciful “cliff-edge” just a short hop down the road.
It is a scandal, really. But is the alternative “crashing out with no deal”, as some put it? No. It is still possible for the UK to take back control of the negotiations and achieve a successful and workable Brexit. But to do that means being willing to embrace the prospect of leaving without a trade deal. And it requires a proper understanding of what the EU intends the Irish backstop to achieve.
Our politicians have largely failed to present the backstop to us in its proper light. They say it is a transitional measure, one that will cover a gap between next April and a new trading relationship that will be so close as to make it redundant. They talk freely therefore of an “end-date” to the backstop, anticipating that close relationship as permanent.
But the EU perfectly understands that, once we leave the EU, there is nothing they can legally do to stop us from diverging, piecemeal or suddenly, from our new trading relationship. Michael Gove has told them that is exactly what we intend to do, after all. And if we do that, they may feel forced to erect a border on the island of Ireland to “defend” their Single Market. They want a guarantee that they can never be obliged to do that.
So what the EU is seeking in an Irish backstop is not a transitional or temporary thing. It has to be permanent (“workable, enforceable and all-weather”, as Michel Barnier put it recently, “all-weather” being the new euphemism for “permanent”). It will not be effaced or rendered null by a future trading relationship. It is what it says: a backstop, a perpetual insurance policy ensconced in international law that will come into play if ever we want to change our future trading arrangements in a way that could be judged by the EU to necessitate a “hard” land border between the UK and the Republic of Ireland. The EU thinks they have made this sufficiently clear and they look in bafflement at British interlocutors when they say there must be an end-date to the backstop!
In short their view is that Great Britain (not the United Kingdom) can strike any reasonable trade deals it can manage, with the EU or with other countries, but that, if we do so, we must leave Northern Ireland behind in the Customs Union and large parts of the Single Market, permanently deprived of a say in substantial parts of the laws affecting it, and with a goods border in the Irish Sea.
And since no British Prime Minister will ever propose abandoning Northern Ireland (unless it freely and lawfully chooses to join the Republic under the terms of the Good Friday Agreement), the whole UK will be trapped in perpetual subservience to the EU, tied to their rules and laws and having no say in them. That is what signing it means. Like a virus, the backstop may lurk in the marrow for many years unnoticed, but it will pop out if ever we seek to make a real break for freedom. Properly understood, it destroys the notion of some Brexiteers that surfaced in mid-year that we can “get out and fix it later”. We can’t fix it later: not while maintaining our territorial integrity.
If that is the price of a “deal”, clearly we must go for No Deal. But there are in fact two deals: a Withdrawal Agreement, as envisaged by Article 50 and a future trading relationship, formal talks on which will not begin before we leave. We would do well to split them. We can certainly offer a Withdrawal Agreement acceptable to us, but uncoupled from a deal on the future relationship.
Old-fashioned diplomats, going into negotiations, always sought to avoid being in the position of the party seeking something: the demandeur in diplomatic parlance. Our weakness in the negotiations is that we are desperately seeking something and the EU, through canny sequencing of negotiations (in which we lazily and stupidly acquiesced), has managed to make out that it is not. The only way to break out is for us to cease to be the demandeur. And the only way to do that is to embrace leaving on WTO terms and be willing to do so.
What we need to say now to the EU is that we no longer wish to discuss our future relationship as part of these negotiations. We are under no legal obligation to do so. We will have the default relationship that any independent country has with the EU, just like the USA and many other countries do. But we will sign a Withdrawal Agreement that will involve our paying our dues and agreeing citizens’ rights and the other administrative matters that it has suited both sides for practical reasons to include to date in the draft Withdrawal Agreement.
Our proposed Withdrawal Agreement will also contain a promise by both sides to use best endeavours to have a minimal Irish border and will remit the question of practicalities to technical talks outside the Article 50 process. In effect, we will offer the EU money for their coffers and stability for their and our citizens. We will also recognise that underlying legitimate Irish concerns about the “border” are more fundamental issues about the economic and social future of Ireland and we shall offer to work together to address those.
Our proposed Withdrawal Agreement will not include a “transition” period. But we will offer more money should the EU agree a strictly time-limited one, concluding in December 2020. Both sides can use this to prepare in more detail (if needed) for trading on WTO terms.
It is an offer that will be understood by Parliament and the British people as proposing an exit that is neither “disorderly” nor “chaotic”. With luck, it will maintain a smidgeon of goodwill with the EU and allow closer relations to be rebuilt over time. Crucially it will preserve the independence and the territorial integrity of the UK.
The choice will then be for the EU to accept the proposal or to invite us to leave with No Deal. Our offer will remove EU leverage from the negotiations, since if they refuse it, we will simply leave it on the table. They may come round one day and in the meantime they will look wholly unreasonable, to the world and to their own citizens. And we will be out.
Of course, as I say, this does mean we would leave on WTO terms. But, if the EU decided to accept our payment for a transition period, it is more than possible that a working trading arrangement, if not a full all-UK/EU Free Trade Agreement, could be worked out in that 22-month period. However, we would not be seeking that: we will no longer be the demandeur.
The art of leadership, if you don’t know the answer to the question, is to change the question. That is what the Government needs to do. But to do so, we must be seeking nothing, and so remove the EU’s negotiating leverage.
Here, therefore, is the letter Mrs May should now write to Mr Barnier:
We wish to take a new approach to the negotiations surrounding our departure from the EU.
The UK will cease to be a member state on 30th March next year. We no longer seek to conclude a framework agreement with you on our trading relationship with the EU after that date as part of the current negotiations. Nothing in Article 50 requires us to do so. This will mean a degree of disruption to both of us, but we will cope and in due course we will, as separate states, start to repair the web of relationships that geography and mutual interest imply between two neighbouring but independent entities with so much in common. But it is clearly the case that we find it impossible to agree those things now in a way acceptable to both sides, so we need to let time and good sense take their healing course.
As a responsible state, however, we are willing to enter into a Withdrawal Agreement as contemplated by Article 50 to cover matters of common interest relating to our departure in an orderly way and on a mutually acceptable basis.
The Withdrawal Agreement we propose will cover:
- The orderly assignment of assets and liabilities between us, to be assessed and adjudicated by an impartial, independent body;
- The rights of EU citizens resident in the UK and of UK citizens resident in the remaining EU states, though with no role for EU law within the UK beyond an eight-year time limit;
- An agreement to work together in good faith outside the Article 50 process to establish and implement the minimal proportional customs arrangements on the land border between the Republic of Ireland and the United Kingdom consistent with the status that will subsist between us as “third countries”; these discussions will be undertaken by competent technical officials from the United Kingdom, the Republic of Ireland and the EU and, in our view, will build on technological monitoring, electronic filing and remote enforcement. The shared objective will be to have as “invisible” a border as can be agreed; and
- Other matters of a practical character already agreed between us.
We note that the current draft Withdrawal Agreement includes payments by the United Kingdom covering our budget contribution during an implementation or transition period of some 22 months from next March. These payments would no longer form part of the Withdrawal Agreement we propose unless the planned implementation or transition period were retained. The United Kingdom would be willing, however, to make those budget contributions if the implementation or transition period were retained on a basis fully consistent with the European Convention on Human Rights and we believe it would help minimise disruption for both parties, should that be agreed.
We are conscious of our legal and constitutional responsibilities under the 1998 Belfast Agreement and are fully committed to their fulfilment. Outside the Withdrawal Agreement, but alongside it, we therefore propose to work closely with the Irish Government and all communities on the island of Ireland to ensure that the legitimate concerns and aspirations of all communities embodied in the Belfast Agreement remain fully credible after Brexit. The assistance of the European Union in facilitating those discussions in support of the peace process would, of course, be welcome.
We hope you will accept these terms. If not, we will, if so obliged, proceed to leave in March without a Withdrawal Agreement.
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The Chequers proposal had two aims: (1) ensuring frictionless trade and (2) solving the Irish border problem. Its proposal to keep the entire country (not just businesses that trade with the EU) perpetually locked to EU standards in which we have no say, and from which we cannot depart to enable us to agree trade deals with other countries, was totally condemned by both Leavers and Remainers.
The ‘common rule book’ was rejected by the EU for ‘cherry picking’ and undermining the Single Market; and the ‘combined customs territory’ was rejected by the EU which, justifiably, refuses to delegate its tariff collection to a third party. So Chequers was on life-support. The addition of “temporary” all-UK membership of the Customs Union is unacceptable to us without a time-limit and unacceptable to the EU without a backstop-to-the-backstop that could ultimately separate Northern Ireland from the UK. Finally, the idea of an extended transition (that wouldn’t necessarily solve the Irish border problem) has been universally rejected by all wings of the Conservative Party.
Even if Theresa May managed to pile in enough further concessions to solve the Irish border problem (if it really is a problem, not just a political device), that wouldn’t be the basis for a deal unless we were prepared to sign the Withdrawal Agreement and contract to pay £39 billion with no understanding of the nature of any future trading relationship (since Chequers has been rejected by the EU). Not even Mrs May – surely – would do that?
So, fortunately, through her successive and futile concessions to the EU, Mrs May seems to have put the final nail in the coffin of the Chequers plan, and left the way open for a fresh and possibly more sensible approach.
Boris Johnson’s Plan B or Canada+++, or whatever you want to call it, has been dismissed by critics, including Mrs May, as ‘fantasy’ because it does not solve the Irish border problem. Up to now, Mrs May has been able to claim that ‘only my plan can solve the Irish border problem’. That argument is now demolished.
So now a “no-deal” seems increasingly likely. There are some potential upsides: we will save most of £39bn (not all, because legal obligations will be honoured) and be free at once to negotiate Free Trade Agreements around the world. Downsides include the cliff-edge in March 2019 (although the Government is now, belatedly, making serious plans for no-deal); trading with the EU on WTO terms until a free trade deal is agreed with them; potential UK/EU border friction (at Dover, etc); and having to deal with the Irish border.
The exact wording of the backstop agreed in December 2017 was:
“In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the 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.”
As Boris Johnson and David Davis were reportedly told, this wording and the implied definitions were pretty narrow and meaningless, i.e. that “those rules” which apply to goods exported from the UK to the EU across the Irish border must be aligned with EU regulations. That is seemingly obvious… and harmless. There’s not a word about Northern Ireland staying in the Single Market or having to follow the EU rule book for everything. “Those rules”, it says, not “all rules”. What the EU has been demanding is something far beyond what they agreed with the UK last December.
It must be perfectly plain that we will not allow the EU to try to split Northern Ireland from the rest of the UK (any more than they would expect Spain to split off Catalonia or France, Corsica or Normandy).
If there is no deal, the Irish border will still exist, and neither Ireland nor the EU will want to invoke a hard border. Britain certainly won’t. So some kind of pragmatic monitoring/enforcement arrangement would have to be agreed between the respective customs authorities in the event of a no-deal.
By offering one concession after another Mrs May is just manoeuvring herself and us further and further into a tight corner. Much simpler to say “no”, we won’t play your game, it’s no deal.
With no-deal, the EU will have to tolerate what they consider to be an unsatisfactory border arrangement and forgo their £39 billion. Why would they allow their intransigence force us into that situation when they could do a deal under which they tolerate – temporarily – that same unsatisfactory border arrangement and pocket their £39 billion?
So the choice for the EU becomes a simple one: do you want a no-deal-style Irish border arrangement with or without £39 billion?
As to future trading arrangements, Mrs May must be persuaded that the Canada-plus formula offered by the EU is the most favourable for the UK. While entirely frictionless trade would be very nice, the price she is proposing to pay – EU regulations imposed on all UK businesses including the more than 80% that trade only domestically or with non-EU countries; no say in regulations or trading standards or ability to challenge regulations that especially damage British businesses; no ability to innovate; no ability to negotiate trading standards as part of FTAs; cumbersome tariff reclaim procedures – is simply too high as an alternative to accepting some friction but minimising it. When encountering friction, you don’t scrap the machine, you apply oil: trusted-trader status for regular just-in-time supply-chain consignments; number-plate recognition that opens barriers at designated trusted trader lanes. Where is the friction?
Where are the obstacles? There is only one – the need for a firm negotiating stance.
Last Thursday, the same day that we read “Theresa May to trigger full-scale parliamentary no-deal planning ‘within three weeks’”, we read of Guy Verhofstadt brazenly insisting there’s a 0% chance of a deal unless we agree to the EU’s Irish border demands, apparently blind to the consequences to the EU – a no-deal Irish border problem and a £39 billion financial black hole.
On the other hand we have seen Wednesday’s news: “France threatens to block Calais port to the UK if we refuse to pay £39bn divorce bill”. The EU persists in making unjustifiable and unconscionable demands regarding the Irish border, aimed solely at keeping us in the Customs Union and so preventing us from entering into global free trade deals.
Their insistence on their childish game of chicken is getting beyond ridiculous. Is this how intelligent adults behave? Don’t intelligent adults just sit down and agree new feasible cooperative arrangements that will be to their mutual advantage? It’s called an amicable divorce.
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Theresa May talked the talk when she said ‘Brexit means Brexit’ and ‘no deal is better than a bad deal’ to such an extent that one couldn’t help but be reminded of Shakespeare’s ‘the lady doth protest too much, methinks’. So now is her chance to show that she can walk the walk.
The Prime Minister is right not to be provoked into walking out, insisting on proper and constructive negotiations; but she should not feel inhibited about coming back without an agreement; the vast majority of the British people want the Government and Parliament to get on with it and a no-deal outcome has always been a possibility.
The media has taken to presenting the EU negotiations as a game of chicken, a game of bluff. Who will blink first? Would the DUP really go ahead with their threat to vote down the Budget if the deal that the PM comes back with results in further checks on goods crossing the Irish Sea? Amongst all this speculation, one thing is certain: the 17.4 million who voted to Leave the EU were not bluffing and they have no intention of blinking.
We have become used to the warnings of the dire consequences of Brexit; warnings that adorn our news bulletins on a daily basis from car manufacturers who threaten to cut and run through to the IMF and assorted bankers predicting economic recession. We were even told that ‘planes will not be able to take off’ presumably because the laws of physics will be suspended once we leave the EU as well. But in spite of all that, the people have remained steadfast with poll after poll showing no change in their desire to leave the EU.
Yet, the metropolitan elite refuses to accept the result of the referendum and continue to call for a second vote, a ‘People’s Vote’, when one has already been held. The disconnect of the British establishment, and the schism between the elite and ordinary working people, is comparable only to that of the House of Louis XVI in late eighteenth century France. When the people gathered outside the Royal Palace asking for bread, Marie Antoinette told them to eat cake. When the people voted to leave the EU, the elite told them to vote again. Marie Antoinette lost her head, literally. The British establishment lost its head, metaphorically; they refuse to come to terms with the fact that we are leaving the EU on 29th March 2019.
The nearer we are to that date, the more desperate they become, with the wealthy, well-to-do and the comfortable instructing workers on what is best for them. The recent open letter from ‘Bob Geldof and friends’ is their latest lame offering. In their letter – and without any sense of irony – unelected and unaccountable ‘Bob Geldof and friends’ described the implementation of the vote to leave the EU as ‘the undemocratic fiat of mediocre politicians’. And even though there was no mention in the letter of a second referendum (obviously, his ‘friends’ refused to endorse a second vote), it was spun by Geldof and an obliging media as an endorsement of it.
It’s not clear if the Prime Minister has rejected the EU’s open-ended ‘backstop’ designed to keep the UK in the Customs Union in perpetuity. She seems to see an extension of the transition period as a way of avoiding the backstop, which makes any sense only if the transition period is indefinite, keeping us in the EU indefinitely. An unspecified extension of the transition period would have the same effect as an open-ended backstop and that’s why it was suggested by the EU in the first place; it is equally unpalatable. Just how bad does a deal have to be before a no-deal becomes preferable?
The EU has treated the Government, and Theresa May in particular, with contempt. Instead of working with the Government to find solutions, the EU ‘demands concrete proposals from the Prime Minister’ as if Brussels is a third party to the negotiations with no responsibility to search for answers.
They insist on a solution to the Irish border before the details of a trade agreement can be negotiated, a solution that can only be found once an agreement on our trading relationship has been reached – the very thing the EU prevented when it insisted on phasing the negotiation in such a way that solutions to problems that can only be resolved once the second phase has been concluded were to be found before the second phase begins. It is like looking for a plug to fill a hole in a wall before you have any knowledge of the size of the hole that has to be plugged.
Since a solution to the Irish border can only be found when the trading relationship with the EU is finalised, an insurmountable hurdle was created. This was no accident or a miscalculation. The sequencing of negotiations was designed to make an amicable UK departure difficult; a warning to any member state that might be tempted to follow the example of the UK – and there many of these.
Theresa May was sanguine and allowed the EU to dictate the pace and the process.
The Prime Minister’s task is not to satisfy this or that group of MPs, this or that section in Parliament; it is not a numbers game, regardless of what we are consistently told by the media. Brexit belongs to the people and the people have been its driving force. Her task is to satisfy the desire of the people to leave the EU; if she does, parliamentary approval will follow in the same way as an 80% Remain-supporting House of Commons voted by an overwhelming majority to invoke Article 50 and to repeal the 1972 Accession Act. If she fails to do that, she must make way for someone who can.
Photocredit: Zero 2010
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The Prime Minister describes the backstop as an insurance policy which no one in the UK or the EU wants or expects to use.
In fact the backstop was introduced by the EU and the EU has refused to concede the point, because the EU actually intends to use this legally-binding provision as a powerful lever in future negotiations.
If the UK signs a Withdrawal Agreement which includes any form of effective backstop, consider the negotiating position the UK would be in after we leave the EU.
During the negotiations on any future trade agreement, the EU would be in a position to demand whatever terms they choose: full compliance with all EU regulations, free movement of goods, services, people and capital and even compliance with EU taxation policy all under the jurisdiction of the ECJ. The UK could also be required to make huge payments to the EU for the privilege of permitting the EU to sell £95bn more goods to us than we do to the EU.
If the UK ultimately rejects the unreasonable trade terms offered by the EU, the transition period will ultimately end and the EU will exercise the backstop. Northern Ireland would become part of the Single Market and the Customs Union and be torn away from the rest of the UK with a border down the Irish Sea or the entire UK would permanently be locked into the Customs Union under the ECJ. That is precisely the reverse of what Theresa May says she is seeking to achieve.
The backstop is not an insurance policy which will never be needed or used. It is an ingenious device developed by the EU to create a comprehensive lock on the future trade and regulatory policy of the UK thereby ensuring that the UK would be under the absolute control of the EU and ECJ and could never effectively compete with the EU.
The EU’s negotiating strategy is brilliant and the UK would be the suckers. With any form of effective backstop, the UK would become a powerless vassal state with no negotiating position in terms of trade or any other policies that the EU chose to impose and the £39bn would have been committed irrevocably.
Clearly, the EU planned from the start to neutralise all of the UK’s strongest negotiating cards by demanding that the £39bn payment be unconditional and developing the Northern Ireland border issue and then introducing the backstop as a mechanism ultimately to force the UK to remain under the EU’s overall control. Olly Robbins and the rest of the Civil service are probably complicit in this deception which would achieve their preference of keeping the UK in the EU, if necessary, by stealth.
The critical importance of this issue is to understand how the dynamics of the trade negotiations will inevitably unfold during the transition period if the UK walks naively into the EU’s Backstop trap.
What is at stake with the EU’s backstop is the entire future of the UK as an independent sovereign state. If the UK concedes any form of backstop then the UK will have conceded the country’s sovereignty on a scale unprecedented in the democratic history of the United Kingdom. There is no conceivable basis that agreeing to a backstop can be in the national interest and it is certainly not a price to be paid for so-called “frictionless trade” with the EU.
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The transition period is supposed to be the time when businesses and Government adjust to the new arrangements for trade with the EU. Theresa May’s preferred own term of ‘implementation period’ makes clear that the original vision was for a period of time in which the practical systems would be put into place to allow the new trade agreement to come into force.
By definition, the implementation period therefore requires that before it begins we have an agreement to implement. Without an agreement to implement, a transition period is simply about delay and disguises the fact that while we may have left on paper, we are still effectively in the EU.
When I was involved negotiating for the UK Government with the EU on the terms of the future EU Constitutional Treaty – with Michel Barnier on the other side of the table – every negotiation concluded in the final days and even the final hours before the deadline.
The two sides can seem far apart but even so agreement generally emerges at the eleventh hour. That is why, if we can hold to a deadline for negotiations to end, we should not rule out an agreement emerging between the EU and the UK. It is, based on history, the most likely outcome.
However, we seem to be letting things slip. First we moved from a promise that the Withdrawal Agreement would include detailed heads of terms on the future trading arrangements with the EU. These have now apparently been diluted to a loose political agreement which it seems likely will contain sufficient ‘constructive ambiguities’ to allow the details of the future trading arrangement to be kicked down the road beyond the March 2019 deadline and into the transition period itself. Now the Government wants to extend the next deadline by delaying the end of the transition period.
We know that we hold maximum leverage in the negotiations before we agree to the Withdrawal Agreement which will see us hand over a potential £39 billion. We also know that businesses and individuals want certainty about what our future relationship with the EU will entail.
Once decisions are made and when we know what we are doing, we can all get on with earning a living and making the most of the new opportunities. Delaying decisions will weaken our negotiating position and is likely to cost investment and jobs.
The Government says it hopes that by giving more time for a deal to be reached, an extension of the transition period would make it less likely that the EU’s demand for a backstop on Northern Ireland would ever come into effect. This is wishful thinking.
The problem lies with the backstop itself, which was never necessary and should not have been agreed to. It effectively commits either the entire UK or Northern Ireland to remain part of EU arrangements – including the Customs Union – on the basis of a flawed analysis of what the EU says is necessary in order to prevent a hard border between Northern Ireland and Ireland. Both the EU and the Irish Taoiseach have made clear there would be no hard border in the event of ‘no deal’, yet EU negotiators have refused to engage with proposals to ensure a smooth border in a future UK-EU deal.
If the Government agrees to this backstop, which it knows it can never accept, then the EU will use the threat of it as leverage to make it impossible to reach an agreement that is either in our interests or that delivers what people voted for. There is already talk that the extension of the transition would allow time to negotiate a customs union for the whole of the UK to satisfy the EU’s backstop conditions.
The Government has said it doesn’t want to stay in the Customs Union, the people voted to leave the Customs Union and yet this is the position we have got ourselves into.
The danger in the Government’s strategy is therefore that we remain locked in the transition period or accept a deal that satisfies the EU’s interpretation of its backstop conditions, either of which would keep us under the control of the EU and locked into EU institutions that we voted to leave.
The Government may believe that its customs proposals in the Chequers proposal can satisfy the EU’s backstop conditions, but the EU has made it clear it does not agree – and if we enter the transition period without these issues resolved, then the EU will hold all the negotiating leverage.
There is the further issue of cost, with estimates of an extended transition period ranging from an additional £10 billion to £15 billion. These are huge sums of money that belong to taxpayers, not to Government. The voters – the taxpayers – have already said they want them to stop.
There is a trap being set here and we must not walk into it.
Things would be easier if there were more trust in the process. Before Chequers, those of us who were involved in the Leave campaign and who had stayed in touch with Leave voters since the referendum had faith that the Government was committed to delivering a form of Brexit that would respect what people across the country had voted for.
The Government’s handling of the shift in policy that led to the Chequers proposal and the handling of negotiations since then has eroded that sense of confidence and trust. Now is not the moment to be giving the negotiators more time.
The post We must not walk into the trap of an extended transition period appeared first on BrexitCentral.
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