It is just possible as of today that by 17th/18th October at the European Council meeting, using perhaps even its well-tried mechanism of stopping the clock, an agreement on a EU-UK Withdrawal Agreement under Article 50 can be achieved and the UK leaves the EU on 31st October with Conservative, DUP, some Labour and Independent MPs’ support. That would be by far the best outcome. Yet it is much more likely that there will not be a positive response in Brussels and that there will be no EU-UK Withdrawal Agreement before the House of Commons for the fourth time.
In which case, on 19th October, on instructions from the European Union (Withdrawal) (No 2) Act 2019, more commonly referred to as the ‘Benn’ Act passed into law on the 9th September, the Prime Minister will be forced to write to the EU asking for an extension under the terms of Article 50. But issuing that letter cannot preclude the executive taking other legal actions to protect UK national interests. A rather neglected part of the full Supreme Court judgment on prorogation in paragraph 55 says remember “always that the actual task of governing is for the executive and not for parliament or the courts”. Extension is a device to delay again a decision. It probably does stop a so-called ‘no deal’ under Article 50 but it need not stop the UK leaving on 31st October.
What we need to do before writing any extension letter is for the UK Government to write, preferably now, to all of the 31 other countries who are contracting parties to the European Economic Area Agreement (EEAA), as well as to the EU, indicating that whether or not an extension is granted by the EU, the UK intends to continue in the EEAA as from the 31st October. A separate letter to the three non-EU EEAA members would also ask that the UK can participate in the EFTA governance pillar. If the extension is granted by the EU, the UK will have to continue to talk about a Withdrawal Agreement but it will then be in tandem with the UK being no longer in the EU and still being a contracting party to the EEAA.
Preparations for an exit from the EU on 31st October 2019 must not be reduced but stepped up. The Government has to do this for there is no doubt that some MPs and some in the EU see an extension as the mechanism for the UK to remain in the EU. It is a well-used technique in the past for other EU countries which after unacceptable referendum decisions were subjected first to delay and then forced to repeat referendums. Fortunately, continued membership of the EEAA for a transition period outside the EU can only be challenged in law within the Vienna Convention on International Treaties which the UK will fight. In the EEA Single Market there will be no need for the UK to take recourse to WTO tariff schedules for intra-EEA trade. Irish border problems associated with leaving the EU would be more manageable by virtue of the regulatory harmonisation on SPS and other trade issues that the continued membership of EEA would bring. Even some problems over cross-border customs duties could be reduced and it would be wise for the UK Government to start to unilaterally implement in Northern Ireland the new cross-border trade and customs provisions suggested to the EU as part of the Withdrawal Agreement by Prime Minister Boris Johnson.
Throughout the last three years I urged Theresa May not to foreclose the option of transitioning out of the EU through the EEAA option as we leave the EU because I believe all of Europe would benefit from an EEA transition, rather than to leave with no deal at all. It is important to recognise that the former Prime Minister came very close in March 2018 to submitting the necessary letter giving the mandatory 12-month notice, but at the last moment our Ambassador in Oslo was stood down from delivering the signed letter from Theresa May. That letter would never have been even contemplated if it was not thought to be legally desirable before signing a Withdrawal Agreement under Article 50 a year later, as she planned to do.
Without having delivered the letter, the former Prime Minister has fortunately, intentionally or unintentionally, left open the option of our continuing membership of the EEA but outside the EU. In an EU extension period, the UK can compare any likely Withdrawal Agreement stemming from those talks with continuing in the EEAA, having control of our own fishing negotiations on conservation and other fishing matters and starting our own trade negotiations with other non-EU countries worldwide.
Single Market transitional arrangements underpinned by the European Economic Area Agreement is something which we were anyhow continuing under the terms of all the drafts of the Withdrawal Agreement so far, albeit in an attenuated form, since it prevents us from exercising our rights on fishing and to enter free trade agreements. This relationship to the EEA was purposely obscured for those MPs who wanted to pretend that there was no involvement with the Single Market for a transition period in all the three Withdrawal Agreements offered to us by the EU. Had we accepted without giving the statutory notice, we would have claimed it was justified by saying de facto we were still in the EEAA in the Withdrawal Agreement. The minor legislative changes necessary eventually for completing this move for the UK leaving the EU simply mirror the changes but in the opposite direction to when Austria, Finland, and Sweden – members of EFTA – acceded to the EU. The changes in legislation then were so minor that the legislative changes to the Treaty were not completed for nine years. So, there is no need at this stage to put these minor changes about non-EU membership into the European Union (Withdrawal) Act 2018 which states we are leaving our current status as EU members of the EEA. It is noteworthy that Croatia is already in a different category for EEA membership called ‘provisional’. What is being done is making a minor adjustment to an existing Treaty and such international documents quite often only make the legislative adjustments much later.
Given the build-up of negativity in the EU over whether a Withdrawal Agreement under Article 50 can be negotiated twenty days before the 31st, now is a good time to indicate to all EEA members, including the three non-EU members, that we will be continuing our membership but as a non-EU member after 31st October. This non-EU EEAA transition period can in no way be reasonably depicted as ‘crashing out’ of the EU. In the absence of agreement under Article 50 it takes every possible measure open to us to soften leaving while not being forced into an EU customs union. It renders the Irish backstop null and void. which all along has in reality challenged the core principle of consensus between the parties to the Good Friday Agreement. After a period of adjustment, non-EU EEA membership for the UK during the transition offers a better chance of restoring consensus in Northern Ireland and it is a weakness in the Good Friday Agreement that the Assembly can stay suspended for such a long period and one we all need to try to bring to an end.
What was never given any civil service consideration by David Cameron’s Government was Article 50. He simply announced we would exit through it without any understanding of the very nature of Article 50. It is not a conventional international negotiation. It was designed by two distinguished figures, the former UK diplomat, Lord Kerr of Kinlochard, and by the former Italian Prime Minister, Giuliano D’Amato, both ardent federalists who have made it abundantly clear in public and private that their design of the Article 50 for the Lisbon Treaty was deliberately weighted against the country wishing to leave the EU, in a way that no sensible government would ever invoke it. I have never ceased to argue that the UK should not have used Article 50 of the Lisbon Treaty, since it was a mechanism fraught with so much difficulty for us and that we should have exited through the arbitration procedures within the terms of the Vienna Convention on International Treaties.
The crucial error that the UK Government made in presenting their case before the Supreme Court which started on 17th September 2019, following the Government’s decision on a long prorogation of Parliament on 9th September, was in not demonstrating that the concept of parliamentary sovereignty involves much more than just how long and when Parliament sits. It involves governing in a complex, increasingly international world. We in the UK have evolved over the centuries two separate systems: firstly a separation of powers between the judiciary and Parliament; and, secondly, a fusion of powers between the executive, consisting mainly of MPs on the frontbench of the House of Commons, and the official Opposition who communicate through the “usual channels” and backbench MPs from different parties as well as a few independents. The current deadlock in Parliament and postponement of exiting the EU after the referendum, which has gone on for three years, has meant that the functioning of the fusion of powers between the executive and MPs has broken down and that should have been stated from the outset by government lawyers to the Supreme Court.
The fact that the Withdrawal document proposed by 27 EU countries has been defeated three times by the present Parliament raises profound questions for the government about UK MPs readiness to ever endorse the EU referendum decision. This political change in the conduct of government and accountability to Parliament following a referendum should have been the central argument raised by government lawyers during the hearings in the Supreme Court to explain the background to the decision of the government on prorogation. Nor did they bring before the Supreme Court the Government’s view, repeatedly expressed in Parliament and elsewhere, that Speaker Bercow, whose favourable views on the UK’s continued membership of the EU he had made abundantly clear, had called in question the most precious attribute of a Speaker – namely, their impartiality. Nor did the government in the Supreme Court question in depth the legality of the very recent but highly relevant changed procedure of the House of Commons allowing the ‘Benn’ Act to pass rapidly into law on 9th September 2019. Nor did they challenge the Cooper/Letwin Act passed earlier. The Supreme Court was never told in unequivocal terms that prorogation was a failsafe against this type of legislation affecting the ability of Her Majesty’s Government to fulfil the referendum result through Article 50. Now it may be argued these events coming after prorogation were not relevant to the case, but clever advocacy could have got around that objection.
The UK executive has had, over many centuries, powers in relation to Treaty negotiations to preserve the confidentiality of their negotiating position, to trade positions around difficult compromises and settle on an overall deal without the interference of Parliament in the negotiating process. But the Supreme Court is not like the US Supreme Court; it does not have the power to ‘strike down’ the ‘Benn’ Act. It is the last Act which is the law and our Supreme Court does not have the power to declare an Act of Parliament illegal. The US Supreme Court does have that power as does the French Constitutional Court. For this reason, it is fanciful talk to say we can ignore the ‘Benn’ Act. We have to circumvent it with another legal way of leaving the EU and what I propose is, I believe, the only way.
Even though under ‘Benn’s’ European Union (Withdrawal) (No 2) Act 2019 ordering the Prime Minister to write asking for an extension of Article 50 in the event of no agreement on 19th October, when it may be clear to the UK Government and even the 27 EU governments that there is no realistic chance of reaching an Agreement under Article 50, the UK has to send the letter. If the 27 EU countries were wise they would in this situation refuse any extension request, and accept the UK’s intention to leave the EU under the EEAA and cooperate with the UK on this new transitional exit that would be to the mutual advantage of all countries in the EEAA.
The above is an abridged version of a speech delivered to the Cambridge Union on 8th October 2019.
The post The legal way to exit the EU by 31st October is through a transition in the EEA appeared first on BrexitCentral.
Further to this piece of 19th September investigating the risk of increased smuggling across the Irish border after Brexit, we set out below a legally operable cross-agency operational plan to be established between the Customs and Enforcement Agencies of the United Kingdom, Ireland and the European Union to protect both the EU Single Market and the UK Border from abuse by illegal activity after the UK leaves the European Union on 31st October 2019. It should be read in conjunction with the Prosperity UK report on Alternative Arrangements for the Irish border, and associated documents.
The draft Withdrawal Agreement and Political Declaration, and the Belfast (Good Friday) Agreement, set out the intention and legal frameworks by which the British, Irish and EU Member States may to work together to protect their respective countries and communities from international organised crime and smuggling, after the UK withdraws from the EU.
Article 43 of the Withdrawal Agreement requires the market surveillance authorities of the EU Member States and the UK to exchange without delay any information on any goods placed on the market during the transition period.
Article 50 of the Withdrawal Agreement allows the UK to have access to relevant networks, information systems and databases for this purpose.
Article 62 of the Withdrawal Agreement provides for ongoing police and judicial collaboration in criminal matters.
Article 63 of the Withdrawal Agreement provides for ongoing law enforcement cooperation proceedings, police cooperation and exchange of information including cross border surveillance.
Belfast (Good Friday) Agreement
Strand 3 of the Belfast (Good Friday) Agreement established a British–Irish Council (BIC) and a British–Irish Intergovernmental Council (BIIC) to facilitate cooperation between all law enforcement agencies in both the United Kingdom and Ireland on security matters.
Paragraph 19 of the Political Declaration recalls the determination of the parties to replace the backstop solution in Northern Ireland by a subsequent agreement that establishes Alternative Arrangements the absence of a hard border on the island of Ireland on a permanent footing.
Paragraph 26 of the Political Declaration states that the Parties will put in place ambitious customs arrangements in pursuit of their overall objectives; including through the exchange of information to combat customs fraud and other illegal activity.
Paragraph 82 of the Political Declaration states that the future relationship will provide for comprehensive, close, balanced and reciprocal law enforcement and judicial collaboration on criminal matters, with the view to delivering strong operational capabilities for the purposes of the prevention, investigation, detection and prosecution of criminal offences.
Paragraph 84 of the Political Declaration states that the future relationship should cover arrangements across three areas of cooperation: data exchange, operational cooperation between law enforcement agencies and judicial cooperation on criminal matters, and anti-money laundering and counter-terrorism financing.
Paragraph 85 of the Political Declaration recognises that effective and swift data sharing and analysis is vital for modern law enforcement; and permits the parties to put arrangements in place to reflect this in order to respond to emerging threats, disrupt terrorism and serious criminality, facilitate investigations and prosecutions, and ensure the security of the public.
Paragraph 90 of the Political Declaration enables the parties to consider further arrangements for the practical cooperation between law enforcement agencies, such as joint investigation teams.
Paragraph 120 of the Political Declaration states that the future relationship should be based upon an overarching institutional framework that allows for specific governance arrangements in individual areas.
In order to mitigate the potential risks of smuggling posed by any tariff differentials in the transition period – and to investigate any evasion of Anti-Dumping Duties into the EU single market – the relevant enforcement agencies in the UK, Ireland and the EU must be empowered to act in accordance with the aforementioned provisions to prevent criminal activities as well as to monitor, investigate, disrupt, deter and prosecute offenders.
Such cross-border activity already exists in non-European jurisdictions such as the US/Canada border – and between EU and non-EU Member States at the Norway/Sweden Border – based on bilateral agreements. In this context, the EU (Sweden)–Norway technical cooperation has several elements that have been in operation for some considerable time, with successful results.
The key to successful law enforcement in disrupting and preventing cross-border crime lies in the timely acquisition of accurate data; and a collaborative approach between customs and enforcement agencies on both sides to analyse and refine it into intelligence packages to inform interventions, which are then shaped and targeted for maximum impact.
The ending of free movement of goods between the UK and the EU – and the consequential access to commercial data through the increase in import and export declarations – on both sides provides significant opportunities for law enforcement agencies to identify risk-based intelligence profiles to protect their respective communities from crime.
Modern-day border checks rely entirely upon intelligence-led interventions, which may take place at various points and timeframes in the supply chain and – with appropriate legal authorities – by agents from multiple jurisdictions. Targeted interventions are far more effective than routine physical stop and search at the border itself. These interventions may take place in facilities at the point of origin, transit or delivery, based on strategic and tactical intelligence assessments.
In order to maximise these opportunities, the relevant law enforcement agencies must be empowered – in so far as the legal framework permits it – to share data and intelligence with each other. Furthermore, the parties should establish a legally operable framework on the island of Ireland which grants cross jurisdictional powers to the customs and border agencies to intervene.
In order to give effect to these measures the parties should establish governance arrangements under the existing BIIC structure, and under paragraph 120 of the Political Declaration, to give effect to a joint border action plan between the parties.
The aim of the joint border action plan would be to establish mechanisms and structures between the customs and law enforcement agencies from all sides to identify new and emerging threats to the border security arising from the withdrawal of the UK from the European Union. This would be based entirely upon the aforementioned provisions of the Withdrawal Agreement, Political Declaration and Good Friday Agreement to facilitate a deep and meaningful international collaborative approach to the investigation, disruption and prosecution of all forms of cross border crime.
International best practice already demands that law enforcement agencies work across borders to investigate and disrupt international organised crime and smuggling. The EU has long established structures for collaboration between Customs agencies from Member States which include intelligence-sharing, officer exchange programmes and a joint interventions strategy. Such arrangements are not restricted to EU Member States; they extend more widely to source and transit countries through third country agreements, and international law enforcement structures such as Interpol and the World Customs Organisation.
Lessons can be learned from other countries on the development and implementation of joint border action plans which do not require membership of a Single Market or Customs Union between the parties.
In North America, the US – Canada “Beyond The Border” initiative established comprehensive arrangements for joint working between US and Canadian law enforcement agencies to disrupt cross border crimes. This includes the development of National Targeting Centres on both sides of the border with information sharing agreements to identify external threats; officer exchange programmes; and integrated border enforcement teams empowered to develop and implement investigations and operations on both sides.
In Europe, the Norway-EU (Sweden) border permits single inspections and cross-border investigations by Customs agents on either side of the border. There is a framework for exchange of intelligence and risk management data, profiles, patterns on all levels – namely strategic, tactical and day-to-day operational level. Both countries work actively to manage and monitor the international supply chain based on agreed objectives; and to share access to all relevant intelligence and risk management data.
Given that the UK and Ireland are starting from a point of regulatory conformity – and that both the EU and the UK have already committed to ongoing collaboration on matters of criminality and security – work should commence immediately on the establishment of a joint border action plan between all the relevant enforcement agencies on both sides.
Terms of reference should include:
- A joint border threat and risk assessment, covering the concerns of both sides including the protection of the integrity of the UK Border and the EU Single Market;
- A deep and comprehensive data-sharing agreement between the parties which respects the EU regulatory framework whilst simultaneously enabling the parties to develop joint analytical units and intelligence packages;
- A joint targeting centre on the island of Ireland comprising of customs and law enforcement agents from both sides, with a joint governance structure aligned to the BIIC and the new joint UK/EU governance structure;
- A commitment that both countries should individually and collectively work together to increase access to relevant intelligence and risk-management data from other partners and the international supply chain; and
- Development of codes of practice for interventions on either side of the border, and at the airports, ports and harbours on the islands of Ireland and the UK, in furtherance of the joint ambition of the parties to protect the safety and security of their respective communities.
We commend these proposals to the attention of the respective negotiating teams, for their attention and consideration.
The post How to protect both the UK border and EU Single Market in a post-Brexit world appeared first on BrexitCentral.
The path to a negotiated Brexit deal is now broadly dependent on the statesmanship of one man.
The Prime Minister’s letter to the EU with a new Brexit offer has landed well in the UK with the support of the DUP, the ERG, Remain-supporting Tories, an important number of Labour MPs, even possibly some Liberal Democrat MPs. So there is a path to a parliamentary majority.
In the EU, there has been opposition from Guy Verhofstadt, the European Parliament’s Brexit co-ordinator, but as we now know from his own words, he is an EU imperialist for whom Brexit is an opportunity to acquire new territory on the fringe of his Empire. Hopefully he will remain on the fringe of EU thinking. Wiser EU heads, including Jean-Claude Juncker, Michel Barnier and Angela Merkel, seem to be making more constructive noises.
The key decision-maker now is the Irish Taoiseach, Leo Varadkar. Does he recognise the concessions the UK has made and push forward to more serious negotiations in the tunnel? Or does he reject the offer and open the path to months or perhaps years more of uncertainty which will plague both the UK and Irish economies?
Unfortunately, the Remain lobby in the UK has made the latter path more tempting for him with their efforts to take away the threat of No Deal and so throw Prime Minister Johnson naked into the conference chamber. However, even with the ropes tied around Johnson’s wrists, a failure of the negotiations at this stage would carry significant uncertainty for both Ireland and the EU.
Mr Varadkar has said he is pleased with the concession that Boris Johnson has made in goods alignment, taking Northern Ireland a long way towards a full alignment with the Single Market.
Two major issues remain. First, Mr Varadkar is not comfortable with the DUP’s wish to remain part of the UK’s customs arrangements. If and when the UK negotiates differential tariff rates there is a risk of an increase in smuggling rates. Prosperity UK have written on this extensively. Three types of smuggling risks already exist on the Irish border: human smuggling, prohibited goods (like drugs, firearms etc) and restricted goods where there is already regulatory divergence on excise duties (e.g. alcohol tobacco, fuel, oil and gas). Adding the risk of tariff variance to this can surely not be a deal breaker. Is Mr Varadkar really worried about the undetected smuggling of cars across the border should the UK operate on a zero-tariff basis instead of the EU’s 10% wall?
As Tony Smith, former Head of both UK and Canadian border controls made clear at our recent Alternative Arrangements Commission conference in Dundalk, borders are no longer physical frontiers, they are a series of transactions. It is time to embrace the path of progress and technology.
If Mr Varadkar is not happy either with a time-limited backstop or with the facilitation provided by alternative arrangements, then the question that he has to answer is: is there any date or scenario for which you accept customs sovereignty for Northern Ireland ?
The other issue is the one of consent. Boris Johnson has engaged much more intensively with the DUP than Theresa May even began to, and the result is a proposal which grants Stormont consent on the way into the four-year alignment period and also every four years to its continuation.
This leaves the question of EU or Irish consent. A time-limited backstop would not appear to be sufficient for the EU as it theoretically allows the 2021-2025 arrangement to terminate without any EU sign-off on the alternative arrangements that have been put in place. This is why Prosperity UK developed a draft protocol for agreement by both sides on the conditions that need to be met. We understand that a protocol of this kind has been included in the UK proposal. This is the path to legal operability which the EU has requested. It should grant Leo Varadkar the protections he needs – and if it does not I am sure the UK would be open for negotiations in the tunnel.
As Boris Johnson said when he visited the Taoiseach in Dublin, this is a time for Statecraft. Let us hope he rises to the occasion.
The post It’s time for some statesmanship from Leo Varadkar appeared first on BrexitCentral.
I worked for two years as a civil servant at the Department for Exiting the European Union. I cannot fault the staff I worked with, who represent the very best and brightest that the British Civil Service has to offer. DExEU felt more like a start-up business than a lumbering ministry of state: it was full of the young, the fresh and the energetic, the crème de la crème of the British labour market. They come from diverse backgrounds and have diverse ambitions; but my experience of my colleagues was that they were single-mindedly devoted to the task in hand and committed to doing as they were asked, whatever their private views might have been.
Let’s not kid ourselves either, though: this is a Department with no offices outside of London; the average age of its staff is around 30, and almost everybody there was educated at a top university. It’s far from a Brexiteer’s natural home. Indeed, when people joked about cities burning and aeroplanes falling out of the sky, one was never entirely sure whether they were joking or expressing a sincerely-held fear.
But they did their jobs and they did them well, even as they were strangled by the Cabinet Office’s consistent refusal to engage under Olly Robbins. David Davis and Steve Baker have spoken at length about the extent to which they were mere flotsam in a tidal wave of secrecy and duplicitousness at the heart of Whitehall. Suffice it to say that nothing these men have claimed about their treatment is to my knowledge untrue or exaggerated. Indeed, the record will show in twenty years’ time that it was often far worse than they expressed.
Finding out what the negotiators were doing, or even what they were aiming for, was an impossible task. Those charged with lobbying the EU’s member states had no line of sight into what Robbins’ cabal actually wanted to achieve. DExEU was downgraded quickly from the negotiator-in-chief to a mere passenger in events, so much so that a ConservativeHome leak revealed that the Department had been drawing up its own version of the infamous Chequers White Paper only to be knocked to the ground by Number 10’s bouncers and stuffed like a Christmas turkey with the Cabinet Office alternative. I have heard senior officials describe the whole process as ‘threaded with paranoia’ and declare in no uncertain terms that much of their efforts were rendered ‘dysfunctional’ – or, to use the popular civil service vernacular, ‘distinctly sub-optimal’.
All in all, the abiding sense was that nobody quite knew exactly what we were supposed to be doing. Under the May administration, delivering Brexit was the stated aim of the Government – but the reality was very different. Britain was sleepwalked into an agreement which tied the UK into a ‘common rulebook’ rather than establishing mutual recognition of standards; which subordinated defence and security structures to the EU; which obliterated the nation’s freedom of action under the Northern Ireland backstop; which would continue to give the European Court of Justice a role in arbitrating UK law; and which would sell British farmers and fishermen down the proverbial river.
The core problem at the heart of our failure to secure a good, strong deal was that Brexit was seen by the people in power as a Pandora’s Box of problems, as a challenge to be mitigated rather than an opportunity to be embraced. That is how we ended up with a Withdrawal Agreement which would deliver a Brexit in name only: because the objective was always to minimise the risks of Brexit, at the expense of any potential gains.
I had anticipated, expected even, that after the referendum result the country would accept the decision taken as a decision made, and rally round to support the future for which the public had voted. I was wrong and naive. In truth, whilst the battle of 23rd June 2016 was won, the wider war was not: from dawn on the 24th, it was necessary to remake the case for Brexit and to fight hard for the vision of Britain outside the European Union anew. Every single day between referendum and delivery, the Government should have been seeking to bring the nation with it, persuading and convincing those who voted Remain that Brexit was an opportunity to cherish far more than it was risk to be feared. We failed to step up to the crease.
But it is never too late to make amends for our mistakes. If we frame Brexit as the staging post for a much broader vision which puts the United Kingdom at the centre of the world and which sets its people free, we can and will bring the country with us.
Brexit means the end of the jurisdiction of the European Court of Justice and of EU law, returning sovereignty to Britain. It is a fundamental principle of democracy that rulers should be chosen by the ruled; but no voter elects the Presidents of the European Parliament, Commission or Council, nor any one of the European Union’s 20 Vice Presidents. The only elected organ of the Union, the Parliament, has no powers to initiate legislation and only limited powers to scrutinise the Commission.
The extension of Qualified Majority Voting means that Britain’s voice can be routinely overruled, and that the British people can be subject to laws for which not a single British individual has voted. This is plainly an aberration and an assault upon the core tenets of basic political rights. No: the only legitimate form of governance is one in which those with the power to make laws are directly accountable to every individual to whom those laws apply. The restoration of full parliamentary sovereignty in the United Kingdom will mean that our 650 MPs, each of whom we directly elect, are solely responsible for deciding the laws of the land.
Many fear that this will lead to a decline in standards; that our MPs cannot be trusted to maintain environmental protections, save us from the horrors of chlorine-rinsed chicken or prevent workers from being forced to perform 25-hour shifts. But the principle of democracy will always apply: the people will be able to elect a government which pledges to do what they feel is right. At the moment, that level of control simply does not exist.
Brexit will allow Britain to make its economy more open, more flexible and more competitive than ever before, with new power to abolish VAT, strike up its own free trade deals around the world or even pursue unilateral tariff liberalisation, and set its own rules on state aid and the regulation of markets. This need not herald a race to the bottom but instead a race to the top: lower taxes, a fairer, freer and more open economy which rejects corporatism and vested interests, and which protects innovation and Britain’s natural talent for technological advancement from increasingly ham-fisted EU directives. And of course, should Britons dislike the direction in which their government is taking their newly liberated economy, they may well elect a new one: at present, the voters of Britain have no power to choose on what basis our international trade policy is set.
Brexit abolishes the insane and racist doctrine of passport discrimination, which allows predominantly white European migrants to enter the country unconditionally but which prevents people from the rest of the world from competing on a level playing field for visas, jobs and homes. Brexit will also deliver control of immigration, allowing the nationally elected government to decide on the criteria for admission. I am, despite the myriad stereotypes about xenophobic Brexit voters, extremely pro-immigration and would favour relatively relaxed restrictions: the point is that it should be the British government, elected by British voters, which decides – and that a doctor from Hong Kong should have the same opportunity as a doctor from Germany to come to build his or her career in the United Kingdom, rather than being subjected to second-class status because of a protectionist European model which seeks to shield the continent of Europe from investment, both economic and cultural, from outsiders.
Fundamentally, Brexit gives us freedom.
The freedom to liberalise trade and open our economy up to new markets, serving as an open and competitive counterweight to the politics of Donald Trump and China, and forging for Britain a role as a global beacon of free enterprise and achievement.
The freedom to revamp our tax system in the way that we choose, delivering savings for the poorest and the just-about-managing by bringing down rates and replacing VAT – a freedom that will be increasingly diminished by the spectre of increasing fiscal harmonisation should we stay in the EU.
The freedom to allow our society to soar, with an immigration policy defined not by your origin but by what you
have to offer.
The freedom to liberalise our agricultural industry along the lines of what New Zealand has done with great success, whilst protecting our fishermen from the abusive slicing up of our coastal waters.
The freedom to go further than the EU on environmental protections and on technological innovation, defending such concepts as free expression and creativity which have been most effaced by the EU in its numerous ludicrous legislative programmes, most notably the recent attempt to ban memes.
The freedom to chart our own course, choose our own destiny, and be ruled by our own elected masters: if we don’t like what they’re doing, we can get rid of them.
The freedom to revive our proud common law system, which protects individual freedom and corporate innovation, by doing away with the extensive acquis communautaire.
The freedom to save billions from ceasing to fund the protectionist Common Agricultural policy, to move nimbly and quickly in the field of foreign trade deals to make the most of the £300 billion in exports that Britain sends to countries outside the EU, where 90% of world growth over the next decade will be happening.
It is the freedom to forge our own future, write the next pages of our own national story – leaping enthusiastically into our globalised and interdependent world, far from shutting ourselves away from it as Remainers fear.
Brexit should not be treated as a catch-all cure in and of itself. It is, as I always said in DExEU, neither panacea nor pogrom. What it represents is an opportunity to begin to do things radically differently in this country. It is a risk, but any good businessman will tell you risks are part of any journey to success. If embraced, pursued proactively with enthusiasm and treated as an opportunity to be made the most of – rather than a challenge to be mitigated and an exercise in damage limitation – Brexit can be a bright moment of ignition, the first spark in a blazing inferno of national revival.
I hope that the Government will learn from the mistakes of the last two years, and make the case for pursuing its policy anew: and I hope that my former colleagues at DExEU will be empowered, once and for all, to do their jobs.
What follows is the text of the letter Boris Johnson has today sent to Jean-Claude Juncker, setting out the UK Government’s proposals for a new Protocol on Ireland/Northern Ireland
A FAIR AND REASONABLE COMPROMISE: UK PROPOSALS FOR A NEW PROTOCOL ON IRELAND/NORTHERN IRELAND
There is now very little time in which to negotiate a new Agreement between the UK and the EU under Article 50. We need to get this done before the October European Council.
This Government wants to get a deal, as I am sure we all do. If we cannot reach one, it would represent a failure of statecraft for which we would all be responsible. Our predecessors have tackled harder problems: we can surely solve this one.
Both sides now need to consider whether there is sufficient willingness to compromise and move beyond existing positions to get us to an agreement in time. We are ready to do that, and this letter sets out what I regard as a reasonable compromise: the broad landing zone in which I believe a deal can begin to take shape.
Our proposed compromise removes the so-called “backstop” in the previous Withdrawal Agreement. I have explained the difficulties with this elsewhere, including the fact that it has been rejected three times by the UK Parliament. Equally importantly in this context, the backstop acted as a bridge to a proposed future relationship with the EU in which the UK would be closely integrated with EU customs arrangements and would align with EU law in many areas. That proposed future relationship is not the goal of the current UK Government. The Government intends that the future relationship should be based on a Free Trade Agreement in which the UK takes control of its own regulatory affairs and trade policy. In these circumstances the proposed “backstop” is a bridge to nowhere, and a new way forward must be found.
Accordingly we are now proposing a new Protocol on Ireland/Northern Ireland. We are delivering the draft legal text of this Protocol to Task Force 50 today. I attach an explanatory note giving further detail of the proposal and I am making this letter and that note public today.
It is based around five elements.
First and foremost, our proposal is centred on our commitment to find solutions which are compatible with the Belfast (Good Friday) Agreement. This framework is the fundamental basis for governance in Northern Ireland and protecting it is the highest priority for all.
Second, it confirms our commitment to long-standing areas of UK/Ireland collaboration, including those provided for in the Belfast (Good Friday) Agreement, but also others, in some cases predating the European Union: the Common Travel Area, the rights of all those living in Northern Ireland, and North/South cooperation. These were set out in the previous Protocol and should be maintained in the new one.
Third, it provides for the potential creation of an all-island regulatory zone on the island of Ireland, covering all goods including agrifood. For as long as it exists, this zone would eliminate all regulatory checks for trade in goods between Northern Ireland and Ireland by ensuring that goods regulations in Northern Ireland are the same as those in the rest of the EU.
Fourth, this regulatory zone must depend on the consent of those affected by it. This is essential to the acceptability of arrangements under which part of the UK accepts the rules of a different political entity. It is fundamental to democracy. We are proposing that the Northern Ireland Executive and Assembly should have the opportunity to endorse those arrangements before they enter into force, that is, during the transition period, and every four years afterwards. If consent is not secured, the arrangements will lapse. The same should apply to the Single Electricity Market, which raises the same principles.
Fifth, and finally, under these arrangements Northern Ireland will be fully part of the UK customs territory, not the EU Customs Union, after the end of the transition period. It has always been a fundamental point for this Government that the UK will leave the EU customs union at the end of the transition period. We must do so whole and entire. Control of trade policy is fundamental to our future vision.
This is entirely compatible with maintaining an open border in Northern Ireland. Goods trade between Northern Ireland and Ireland makes up a little over one per cent of UK-EU total trade in goods. It is entirely reasonable to manage this border in a different way. Any risks arising will be manageable in both the EU single market and the UK market, particularly as all third country imports will continue to be controlled by the EU and UK customs authorities.
We are proposing that all customs processes needed to ensure compliance with the UK and EU customs regimes should take place on a decentralised basis, with paperwork conducted electronically as goods move between the two countries, and with the very small number of physical checks needed conducted at traders’ premises or other points on the supply chain. To enable this, we should both put in place specific, workable improvements and simplifications to existing customs rules between now and the end of the transition period, in the spirit of finding flexible and creative solutions to these particular circumstances. These arrangements can be underpinned by close cooperation between UK and Irish authorities. All this must be coupled with a firm commitment (by both parties) never to conduct checks at the border in future.
Overall, we recognise that our proposals will mean changes from the situation that prevails in Ireland and Northern Ireland now. Our common task is to make sure that these changes entail as little day-to-day disruption as possible to the current situation. I believe that our proposals will achieve that.
Finally, in order to support Northern Ireland through this transition, and in collaboration with others with an interest, this Government proposes a New Deal for Northern Ireland, with appropriate commitments to help boost economic growth and Northern Ireland’s competitiveness, and to support infrastructure projects, particularly with a cross-border focus.
Taken together, these proposals respect the decision taken by the people of the UK to leave the EU, while dealing pragmatically with that decision’s consequences in Northern Ireland and in Ireland.
- They provide for continued regulatory alignment for a potentially prolonged period across the whole island of Ireland after the end of the transition period, for as long as the people of Northern Ireland agree to that.
- They mean that EU rules cannot be maintained indefinitely if they are not wanted – correcting a key defect of the backstop arrangements.
- They provide for a meaningful Brexit in which UK trade policy is fully under UK control from the start.
- They ensure that the border between Northern Ireland and Ireland will remain open, enabling the huge gains of the Belfast (Good Friday) Agreement to be protected.
I hope that these proposals can now provide the basis for rapid negotiations towards a solution, together with finalisation of the necessary changes to the Political Declaration reflecting the goal of a comprehensive Free Trade Agreement, so that an Article 50 agreement can be reached, and the UK can leave the EU in an orderly fashion on 31 October. This will allow us to focus on the positive future relationship that I believe is in all of our interests.
I am copying this letter and paper to other members of the European Council and to Michel Barnier.
The post Boris Johnson’s new Brexit offer to Jean-Claude Juncker appeared first on BrexitCentral.
Is there an alternative to the Irish backstop?
Even before the Withdrawal Agreement was finalised last year this question has been central to the Brexit debate. The EU and the Irish Government have insisted on the backstop as a guarantee of maintaining an open border in Ireland. Although they have pledged to look at alternative arrangements and hope the backstop never has to be used, they still see it as the benchmark against which all other solutions must be measured.
The new Government under Boris Johnson has rejected this logic. In doing so, the Prime Minister has been accused of reneging on commitments made by his predecessor, causing great concern in Dublin and Brussels.
In recent weeks, the Government has outlined a possible compromise package, involving a mixture of alternative arrangements to the backstop as well as an all-island regulatory zone for agri-food purposes. While the Irish Taoiseach, Leo Varadkar, has said that “there is still a very wide gap” between the EU and the UK, the fact that talks are continuing is important. The Government is now expected to put forward written proposals after the Conservative Party conference.
Already there are signals coming from Brussels and other capitals that the proposals will fall short of what the EU expects. The EU has set a very high bar for alternative arrangements. They seem to expect the Government to agree to something like a Northern Ireland-only backstop, a solution which has been rejected by Johnson on numerous occasions.
Whatever form a solution takes, there is clearly more work to be done in addressing what Johnson describes as the ‘anti-democratic’ nature of the backstop. The Prime Minister now talks about the importance of securing the ‘consent’ of the people of Northern Ireland as the key to unlocking any deal.
Open Europe’s new report, Brexit and the Belfast (Good Friday) Agreement: Finding a way through the backstop impasse, looks at this issue in some detail. It recognises that the Irish Government – and Nationalists in Northern Ireland – have legitimate concerns about Brexit and the future of the border, but also that Unionists have a very strong case for objecting to the backstop. The question is not about whether the existing approach breaches the Agreement but about finding a way through the impasse. This is a political problem and one that requires an imaginative response from the EU and Ireland as well as the UK.
Ultimately, some special arrangements for Northern Ireland after Brexit are likely. However, the suggestion that the existing backstop offered the ‘best of both worlds’ to Northern Ireland was always questionable, since it was designed to ensure that alignment with the EU was the default in all scenarios. There is a strong argument for saying that any special arrangements for Northern Ireland cannot be decided until there is greater clarity about the future EU-UK relationship itself.
What is possible now is to offer a roadmap about how the decisions will be taken as the negotiations proceed. One way of doing so is to set out a clear role for the Northern Ireland Assembly when divergence becomes an issue. Any decisions about alternative arrangements should also involve the North-South Ministerial Council, one of the institutions established under the Good Friday Agreement. Already the UK and the EU have accepted that these institutions should be involved in the process, but this was merely a domestic political commitment on the part of the UK.
An enhanced Stormont Lock is not about giving the DUP ‘veto’ as the Irish Government fears, but about ensuring that decisions about the future of Northern Ireland are not imposed from the outside. It is also about respecting Northern Ireland’s status as part of the United Kingdom consistent with the consent principle in the Good Friday Agreement itself. The existing approach of the EU has overlooked this key point.
In the long term, it may be that divergence between Great Britain and the EU becomes so great that a hybrid model for Northern Ireland is not possible, and that it is forced to choose which regulatory regime it will follow. At that point it may be necessary to put the question to a referendum, as a very last resort.
But forcing people to make this decision now, at this stage in the Brexit process, would be problematic. The aim of all sides must be to find a solution that is acceptable to everyone, balancing the need for an open border with the concerns of the Unionist parties.
Would Ireland agree to such a package? Ultimately, the goodwill of the Irish Government is needed if the UK is to get a Brexit deal. The Nationalist parties in Northern Ireland also need to be reassured that the process would work for them. There is a risk that a Stormont Lock would simply put more strain on local politics, making a return to devolved government more difficult. That said, imposing a solution on Northern Ireland without addressing the consent mechanism would be inconsistent with the aim of getting the institutions up and running again.
In the end, an unratified Withdrawal Agreement offers no guarantees over the border question at all. Opting for a no-deal Brexit in the expectation that the UK will come back to the original backstop afterwards would not be a responsible route for the Irish Government to take.
If No Deal is to be avoided, there needs to be a compromise solution. This is not about Ireland backing down, but about finding a way to return to the principles of the Good Friday Agreement and restoring the bilateral relationship. It is about identifying a way forward that allows the parties in Northern Ireland to work together in the post-Brexit environment.
Let’s start with some recent history: the reason Boris Johnson is Prime Minister is because Theresa May’s draft Withdrawal Agreement and Political Declaration failed three times in Parliament. Its failure, combined with May’s inflexibility, led the 1922 Committee to be persuaded, by its former Chairmen among others, that the only way forwards for the Conservative Party was to change the rules to allow a leadership election and a new path to Brexit.
That being the case, the Conservative Party was always going to elect a leader who was critical of the Withdrawal Agreement and able to chart a new course. Johnson as a Cabinet Minister who resigned over Chequers fitted that bill. During the leadership election campaign he declared the Withdrawal Agreement ‘dead’. He went on to win.
There is however another Boris Johnson. That alternative Boris voted for the Withdrawal Agreement and Political Declaration, presumably for reasons unconnected to its content. This Boris has spoken about the need to remove the backstop but has remained silent on the problems contained in the rest of the agreement. This Boris has surrounded himself with ministers who also voted for May’s deal and advisers, in the form of Dominic Cummings and his cult followers, who all advocated the deal in various blogs, WhatsApp groups and newspapers. These advisers presumably supported the Withdrawal Agreement for reasons more connected to their current and future roles (under a future Prime Minister?) than the contents of the deal.
This new Johnson Number 10 has now let it be known that MPs who do not vote for the/a deal will be thrown out of the party. No doubt internally this looks like a pleasing symmetry to balance those already thrown out from the other side of the party. To the outside, it looks like rank ingratitude to those who effectively put him in the job.
Given that reports of the death of May’s deal were clearly exaggerated, it is unfortunately necessary to look at it once again. It remains, as it always was, a vehicle designed to take the UK to the destination that Theresa May and her civil servants desired: Chequers, a vassal state, a UK highly-aligned with EU laws within a de facto Customs Union. This desired end-state underpins the entire document, making a surgical rewrite almost impossible.
A rewrite of the Withdrawal Agreement would be further complicated by the fact that the Political Declaration on a future trade agreement and partnership is intimately and legally linked to the text of the Withdrawal Agreement, indeed it was designed to “build and improve” on it. This all makes a rewrite complex and time-consuming – far more so than producing a new text built around free trade. Time is limited. However, if No. 10 wish to attempt micro-surgery, here are some essential amendments that go way beyond the backstop which would be required:
The reason that there are so many problems with the draft Withdrawal Agreement is that it is designed for a different purpose than the one now envisaged by the Government. Why have a transition based on total harmonisation if the end-state is no longer total harmonisation within a de facto Customs Union? Why agree a large financial payment as an inducement for access to EU policies if we are now asking for more autonomy based around free trade? These are all legacies of the May deal – designed around the backstop to keep us in the EU in all but name.
And this is only the Withdrawal Agreement, which never was supposed to be a trade agreement, yet this included many disadvantageous trade items – the ‘single customs territory’ in the backstop for one, as well as a one-way commitment to protecting EU geographical indicators and disadvantageous terms on fishing.
The Political Declaration
The current Political Declaration is legally linked to the draft Withdrawal Agreement via Article 184 of the draft Withdrawal Agreement which states that both parties should use their ‘best endeavours’ to deliver the draft text.
This is important to understand, as the duty is for the parties to deliver on this specific text, including a long list of undesirable commitments. There would be no duty for the EU to negotiate any other type of agreement and thus the £39 billion and transition would be wasted. The Political Declaration therefore needs a full rewrite. Again, if the Johnson No. 10 wish to avoid creating a new text, here are some of the specific problems with the current text:
- Customs Union: the Political Declaration takes the UK to a ‘Chequers’ de facto or de jure Customs Union. This is explicit at Para 23 which cites a ‘Single Customs Territory’.
- Alignment around EU Sanitary and Phyto-Sanitary (SPS) rules: Para 24 envisages the UK going beyond WTO on SPS and Para 25 states the UK should ‘consider alignment’ with EU SPS rules. This could complicate other Free Trade Agreements with countries with high standards but different rules, such as the USA.
- Close harmonisation on financial services: Paras 37-9 on financial services also envisage close harmonisation, something that might lead to the worst of all worlds – less than perfect market access but no compensating autonomy to defend against uncompetitive regulation.
- Fishing: Para 75 cites ‘access to waters and quota shares’ as a potential point of agreement. This reflects aligned with Article 130 of the Withdrawal Agreement (and Article 6 of the backstop which would have left fish outside of the UK customs territory in order to set up a fish for market access deal).
- Non-regression clauses: Para 79 includes a ‘level playing field’ ‘building on’ the Withdrawal Agreement covering “state aid, competition, social and employment standards, environmental standards, climate change, and relevant tax matters”. These non-regression clauses are aimed at limiting the UK’s regulatory autonomy.
- EU Defence cooperation: Paras 104-6 on defence and intelligence sharing envisage the UK taking part in PESCO, the European Defence Agency and European Defence Fund. This has raised concerns about the UK’s relationship with its Five Eyes intelligence-sharing partners and the UK’s defence procurement rules.
What would be left of the current draft Withdrawal Agreement and Political Declaration?
To be fair to the Prime Minister, he has on some occasions spoken of only taking parts for the Withdrawal Agreement and reusing them in a new agreement. It would however still be more logical to start a fresh with a basic Free Trade Agreement, there are parts of the draft Withdrawal Agreement that could be retained in an amended form. An amended draft Withdrawal Agreement would be designed to take the UK to a Free Trade Agreement destination and could retain text dealing with immediate separation issues such as goods already on the market and court cases already undertaken.
If the UK is not to be a part of the Single Market parts of the draft Withdrawal Agreement designed to endure the integrity of the SM are no longer relevant. Provisions important in the context of high alignment (meanings defined by EU law) are and prescriptive provisions regarding state aid and penalties and ‘non regression’ are likewise redundant.
There could be new wording for a basic Free Trade Agreement to replace the transitional period linked to or replacing a new Political Declaration. This FTA could include: Zero tariffs, Mutual recognition of standards and Services.
- There could be a substantially similar provisions on reciprocal rights for EU and UK citizens. outside the ambit of the ECJ
- Provisions on goods already on the market could remain
- Provisions on Euratom would remain (in so far as they are necessary)
- The Protocols on Cyprus and Gibraltar could remain or become by-lateral agreements
- The provisions on judicial cooperation could remain
- Important provisions on social security could remain
- The calculations for financial payments could remain with a cap and conditionality as to an in-depth Free Trade Agreement
In short, a small but substantial part of the draft Withdrawal Agreement could remain in close to its current form, while removing all the problematic commitments designed to take us to Chequers.
So which Boris will win?
Fortunately, we do not have to rely on the Boris of June winning over the No. 10 Boris of today. There are outside factors at play.
Firstly, the EU27 may not agree even small changes to the backstop until late in the day and there is no sign of a seismic change in parliamentary arithmetic necessary for No. 10 to achieve what Theresa May did – threats to the whip notwithstanding. There remain the protections contained in Section 13 of the European Union Withdrawal Act which require a full Act of Parliament to ratify any deal.
Secondly, any delay to the UK leaving or the resuscitation of the May deal would be a disaster for the Conservative Party at the hands of the Brexit Party. The Conservatives have already lost pro-Remain voters to the Liberal Democrats, it cannot afford the symmetry of losing pro-Leave votes. This fact will no doubt not be lost on the office holders in Downing Street. They may care little for the finer legal points of the agreements or have less than polite things to say about Northern Ireland but they do care about retaining their jobs into 2020 – which means winning a general election based largely on securing the support of former Leave voters.
Boris Johnson may have won the leadership, but he should remember he was on the losing side last time the deal was voted on. That tends to be fatal for Prime Ministers.
The next week in Parliament is bound to be tumultuous, but I believe all MPs should remember that some of us have spent the summer fashioning the tools to enable the United Kingdom and the EU to agree a deal.
In July, the Prosperity-UK Alternative Arrangements Commission – for which I chair the 20-strong panel of Technical Experts – published its final report intended to avoid the need for the infamous Irish Backstop, while ensuring there is no hard border in Ireland, the Belfast/Good Friday Agreement is upheld, and the UK is able to pursue an independent trade and regulatory policy after Brexit.
The Prime Minister mentioned the report approvingly in both his meetings with the German Chancellor and with the French President. On Friday, Suella Braverman MP led a delegation of experts from Prosperity-UK to meet Stephanie Riso, Michel Barnier’s deputy, to brief her on our proposals.
Our next step, announced yesterday, is to try and fix the Political Declaration, in order to create a new Withdrawal Agreement which could pass in Parliament. We are seeking to consult interested stakeholders on the interim version and will publish a final version in due course.
The Boris Johnson team will know that the Political Declaration was written by the previous government team with a very specific goal of using the backstop as a bridge to some sort of customs union with high regulatory alignment, both of which would essentially negate any serious sort of independent trade and regulatory policy for the UK. Boris Johnson campaigned on the ultimate end state being an advanced EU-UK Free Trade Agreement (FTA), something he has called SuperCanada, and others have called Canada ++.
While sticking country names on trade deals is not perhaps the best way of describing them, the point is that his administration wants the UK to have a comprehensive, advanced FTA with the EU, a commercial treaty between two sovereign entities and not one which puts Britain in a position of legal subordination to the EU.
We know that the EU ultimately wants to have a comprehensive FTA with the UK, with Irish border facilitations, customs facilitations and regulatory cooperation. It should therefore, in theory, be easy for both sides to revise the current inadequate Political Declaration to reflect this. At the same time, it will be necessary to change certain parts of the Withdrawal Agreement to make it technically consistent both with the new Political Declaration and a new Alternative Arrangements Protocol for the Irish Border.
Amongst other things, these changes are reflective of a huge change in direction by the UK government, from the May to Johnson administrations, which the EU may not have fully internalised yet. Whereas the previous government regarded the backstop as a bridge to an end state which would be some sort of subordinate, hybrid customs union arrangement with high regulatory alignment, the new government thinks the end state should be an advanced FTA with regulatory cooperation, but with the capability for the UK to diverge, so that it can preserve its independent trade and regulatory policy. This is a sea change in approach.
In summary, our redrafted Political Declaration reflects that the final end state should be an FTA. The UK’s sovereignty over matters like Geographical Indications (GIs), currently in the Withdrawal Agreement, should be placed where it belongs in the end state agreement. Changes to the defence and security sections, to reflect the UK’s sovereignty and not limiting its choices vis-à-vis the rest of the world, should be made.
The Withdrawal Agreement should be amended to allow for a transition period, during which the UK can negotiate, sign and ratify trade deals (as it says now), but which also critically provides that both parties will be bound by general principles of good regulatory practice in this period, in order to make sure that the EU does not regulate in the transition period in a way which damages the UK’s interests. It would be difficult for the EU to reject the principle of good regulatory practice embedded, as it is in various OECD documents to which the EU has itself made valuable contributions. Similarly, it would be difficult for the EU to reject the idea that what GIs the UK protects is a matter for the end state FTA between both parties. There will clearly be a GI chapter as the UK will want to protect Scotch Whisky and other key GIs it has.
The Withdrawal Agreement has been amended to reflect the fact that the level playing field obligations have been mutualised and pave the way for similar obligations in the ultimate FTA itself. Given how often these are agreed among parties to FTAs now, the EU cannot seriously object to them.
Many MPs voted against the deal because they rightly feared that Theresa May’s Government would move directly from the deal to an end state negotiation based on the Backstop being activated. It turns out they were quite right to be fearful. If they are to vote for any kind of deal, they will need to know with certainty that the end state of an FTA is not in doubt and the government will be strenuously negotiating in the UK’s interest for the most advanced, comprehensive and liberalising FTA, fully utilising the fact that we have regulatory identicality on day one of Brexit, and thus management of divergence is the key regulatory issue. This message can be communicated with the Political Declaration, and the EU will at least know what the UK wants, something it has rightly complained about in the past.
We have a limited amount of time to put a package on the table, which can pass in Parliament while being an eminently reasonable offer from the UK that the EU can get behind. Prosperity-UK has fashioned the tools, the parties must put them to use.
The post How to fix the Brexit deal so a sovereign UK can agree a comprehensive Free Trade Agreement with the EU appeared first on BrexitCentral.
To some, Boris Johnson’s upbeat talks with EU leaders last week cast a glimmer of late summer sunlight on the Brexit impasse. There appears to be a sliver of a chance that the EU may yet return to the negotiating table in the coming weeks, perhaps because it is dawning on them that this Prime Minister is serious about taking the UK out of the EU without a deal and that a no-deal scenario will be equally – if not more – harmful to them than it will be to us.
At the same time, Johnson’s evident preoccupation with fixing the Withdrawal Agreement by removing the Backstop should be serious concern for anyone who wants a genuine Brexit. There is a very real danger that the Withdrawal Agreement, without the dreaded Irish Backstop, might be agreed by the EU and then get through Parliament. The Prime Minister voted for the Withdrawal Agreement himself, even with the Backstop still in, as did a number of leading Leave-backing MPs at the third time of asking. It is only the EU which now stands in its way.
But we must keep in mind there are many features of the Withdrawal Agreement which are just as bad as the Backstop, but which have received far less attention, notably from our Prime Minister. The Withdrawal Agreement would maintain the supremacy of EU law over the UK, including new laws created by the EU over which the UK would have no voice. This means that UK courts would be required to strike down Acts of Parliament if they are determined to be inconsistent with EU law.
Worse, the jurisdiction of the European Court of Justice would be retrained, either directly or through a dispute settlement system modelled on the one the EU has with the Ukraine through which a notionally neutral tribunal would be bound on issues of EU law by decisions of ECJ. Since the UK would have no judge on the ECJ, it would effectively be under the jurisdiction of a foreign court.
If that isn’t anti-democratic enough, although the UK would be bound by decisions of the EU institutions, including the European Commission, it would not be able to submit proposals or even requests for information to these bodies. Moreover, UK companies would be subject to EU State Aid rules after the transition period, removing a valuable tool of economic policy from the British government. Add to this the fact that the Withdrawal Agreement has very strict financial penalties for breach of its provisions and there would be no recourse to international courts for their resolution.
Perhaps most crucially, tied to the EU’s legal framework during the duration of the Withdrawal Agreement’s application and with no certainty regarding the situation which will replace it (because of the vague, ‘best efforts’ language of the accompanying waffly Political Declaration), the UK will be effectively prevented from signing trade deals with other countries, regardless of the fact that the Withdrawal Agreement misleadingly promises that this would be permitted. The auspicious US trade deal we have been hearing about recently would vanish overnight. And let’s not forget the small matter of the EU’s £39 billion Withdrawal Agreement signing bonus.
With no independent trade policy, bound by the EU’s cumbersome rulebook and subject to the ECJ, the promises made by the Cameron and May governments before and after the referendum (recall: no Single Market, no ECJ), the Withdrawal Agreement is an unmitigated disaster, even with the notorious Irish Backstop removed.
Were the EU to cave in and take out the Backstop, perhaps convinced by the very credible alternative border arrangements proposed by Greg Hands and Nicky Morgan, they would be doing the UK no favours. We would find ourselves trapped in an agreement that is still woefully one-sided.
Once again it is the EU’s intransigence that could end up saving Brexit, even if it means both sides toughing out the massively exaggerated no-deal hardships before the EU ultimately returns to the table and negotiates a conventional free trade deal, which is what we needed all along.
Please, Prime Minister, don’t settle for the Withdrawal Agreement without the Backstop if you get it; the whole thing must be ditched.
The failure (thus far) to implement the people’s wishes on Brexit must be the greatest cock-up in British history. It has created a political mess in which we wallow while the world laughs. So it’s worthwhile to ask what went wrong and learn the lessons. We wasn’t just robbed. We failed incompetently.
Brexiteers assumed that it would be easy. In fact the obstacles were enormous. We faced an intransigent and inflexible opponent in a devious, cunning EU. A determined and articulate middle-class reaction in Britain colluded with Brussels to undermine our case. The Cabinet was divided, a wittering Chancellor poured on cold water and the Treasury organised a chorus of fear. Theresa May’s weakness meant she could be treated and foiled in shameful fashion. All this doomed her.
Instead of implementing the referendum result as his Government had said it would, Cocksure Cameron sulked off. In came Theresa May, too nice to fight, too inflexible to be devious and too stupid to understand. She naively assumed that all she had to do was talk nicely to other heads of state who would understand the politics. Instead she was forced to deal only with the Commission – that had everything to lose. Its role and its money were threatened by Brexit. So it grabbed control of the negotiations to punish us and protect itself.
Niceness was out. Middle-class Europhiles and the Establishment in Britain felt their right to rule was threatened by the hairy armpits of uneducated, ill-informed plebs who’d voted in a way they should never have been allowed to. This encouraged EU determination to punish a nation impertinent enough to question its EU destiny. So while Brexiteers celebrated, the Commission plotted and decided immediately that the 27 would stand together. Then the conditions of departure would be settled before any talks about trade. They’d come only after Britain left. In effect “no deal departure” started as an EU policy.
That put May in a trap. The Lisbon Treaty says once notification is given “a withdrawal agreement is negotiated setting out the arrangements for withdrawal and outlining the country’s future relationship with the union”, two processes to go on concurrently. May’s notification letter of 29th March 2017 asked for this:
“We believe it is necessary to agree the terms of our future partnership alongside those of our withdrawal.”
Legally correct. But EU law is observed only if it furthers ever closer union. This didn’t. A conglomerate of 27 nations can’t negotiate. So EU bureaucrats insisted on one negotiator who would not discuss future cooperation until tough terms for divorce were agreed. Their executioner was Michel Barnier, a man with a Gallic dislike of Britain who announced:
“My mission will have been a success when the terms are so brutal for the British that they prefer to stay in the union.”
He made certain of this by adding a veto for Ireland to the two initial demands about money and protection for EU citizens. There would be no customs border, thus ensuring that Northern Ireland must be treated separately, or the whole of the UK kept in the Single Market. This was the backstop. It threatened to keep the UK a vassal state, but was justified as protection for the Good Friday Agreement. The two were totally unrelated but it was an implicit threat that the old violence would be unleashed unless May caved.
She did. David Davis announced that simultaneous negotiations would be “the fight of the summer” but by the autumn May had decided to grovel, not fight. She erased her red lines, walked into the trap and agreed everything the Commission wanted – only then to suffer humiliation at the EU summit and more in Parliament, which refused to pass her bedraggled agreement.
Her demise leaves a deadlock. A new government determined on Brexit confronts an EU which won’t budge from an agreement which can’t pass, while deliberately inflated fears of “no deal” intimidate the nation. A new government should mean new negotiations but that opens up the whole can of worms of legality, unity, and skullduggery. So the EU is loath to do it, meaning a confrontation which deadlocks everything. Except hysteria.
My conclusion is that whoever negotiates with the EU must carry a big stick. Others invoke the analogy of Dunkirk with Churchill snatching victory out of defeat. That’s daft. We were a nation then, Churchill had a huge majority, there was neither a bourgeois fifth column, nor vested interests generating fear and no media to damn Churchill for dirty underpants. How fortunate that the consequences of either side winning are more marginal than 1940, whatever their long-term impact on the kind of nation we want to be.
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