Mr Davis’ Brexit bridge to nowhere

Some of us will no doubt remember learning the song Sur le pont d’Avignon in our French classes at school. If you are careful, the bridge in question, the Pont St. Bénézet, may be a possible venue for dancing, as the song suggests, but it no longer fills its original function of providing a crossing of the River Rhône as only four of the original 22 arches, which date from approximately 1345AD, are still extant. When the river flooded, the arches tended to collapse and by the 17th century, the authorities gave up their attempts to repair the damaged masonry, leaving its four surviving arches as a bridge to nowhere.

David Davis is now engaged in a hard sell, trying to convince MPs and the general public that his proposed transitional deal is a stepping stone to full severance from the EU. He called it a  “bridge to the future.” If this deal is agreed by our parliament and the EU, nothing could be a less accurate description. Like the Pont St Bénézet in Avignon, it is a bridge to nowhere.

Those Tory MPs making a statement on these lines (and there have been some recently who have use somewhat different terminology to say the same thing) have been denounced as “swivel-eyed” by Claire Perry, the energy minister. The uncomfortable reality is that from what we know of the terms of this deal, it is nothing less than an unmitigated disaster.

We can start with the words of the Brexit secretary himself. Here is his speech. He talks about “strictly time limited implementation period,” yet not only did Mr Davis not specifically mention 21 months but already, rumours are circulating that it may be extended to last for three years.

And during this period, for all Mr Davis’ evasive language and hard-selling, yes, Jacob Rees-Mogg is correct, we would be a vassal state of the EU with no representation yet forced to accept all its laws. Our friends in Fishing for Leave have analysed both Davis’ speech and the EU’s terms for the implementation (aka transitional) period. You can read the analysis of the speech here and a summary of the Commission’s recommendations to the EU council about the terms and conditions for the transitional arrangements here.

The European Council has now (today 29th January) published an annex to its guidelines of 29th April 2017 which covers the transition period. You can read the document here and an analysis of it here. “Vassal State” sums it up well. In case anyone is in any doubt, Clause 13 insists that during the transition period, “The Union acquis should apply to and in the United Kingdom as if it were a Member State. Any changes to the Union acquis should automatically apply to and in the United Kingdom during the transition period.” We’ve got to accept the whole caboodle and we don’t have any say in what may come our way. Davis assured the Select Committee that it takes a long time for new EU laws to pass through the system so it was unlikely that anything which was still only in the pipeline on Brexit Day would actually get through onto our statute books at the end of the transitional period. This is wishful thinking, The Common Fisheries Policy was rushed through in three months in order to be in force when the UK joined in 1973.

The Council document also denies us the right to sign any trade deals during the transition period without the EU’s permission. Clause 16 states:- “During the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the fields of competence of Union law, unless authorised to do so by the Union

The Council document interestingly did not repeat the Commission’s refusal for us to piggyback on any deals which it has signed with third countries. Clause 14 of the Commission document was  unequivocal: “It is also recalled that as from the date of its withdrawal from the Union the United Kingdom will no longer benefit from the agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly.” In other words, we would have to agree not to ask the countries in question if they still wished to keep the same trading arrangements with the UK. We would essentially be under “WTO rules” with the rest of the world. Is its absence a “concession?”

Whatever, we would be stuck in the EU’s customs Union. As we have mentioned countless times before, if we are in the Single Market, there is NO NEED to be in the Customs Union. The two are NOT joined at the hip. “Davis, come here, you bad boy. Your punishment is 100 lines; write out the following until the message sinks in:- we do not need to be in the EU’s customs union after Brexit. “

Add to this an insistence that the ECJ will have an ongoing role in the UK’s affairs (Clause 10 of the Council document) and a continuation of free movement of people (Clause 16). The Council document only briefly mentions the EU budget (Clause 17) but the Commission’s insistence on a payment into the EU’s coffers which is little different from our current payments as a member state appears to be implied.

Naturally, during this transition period, we will be subject to the Common Fisheries Policy (see Clause 21 of the Council Document) which is a disaster. Indeed, if it is extended beyond the current 21-month period, there will be very little left of our fishing industry, which would be catastrophic given that Fishing for Leave’s proposals would have turned the UK into a world leader in fisheries management and would have revived our coastal communities.

What is more, any concessions made to the EU in any transitional deal cannot easily be revoked when it is replaced by a long-term arrangement. Because this “transition” is part of a new treaty AFTER Article 50 terminates the current relationship, and because we will have agreed to replicate and adopt all EU laws, we will create a “continuity of rights” under Article 30 and Article 70 of the Vienna Convention. As this new transition treaty will not terminate with a clinical Article 50 clause where “the treaties (& obligations) cease to apply”, the EU will have grounds to argue that because we undid Article 50 and re-adopted the entire Acquis with no clear exit clause that their rights and obligations established under the transition treaty should continue past 21 months.

The EU may be eventually proved wrong to argue so, but protracted litigation on what is a grey area of international treaty law could tie this country in knots and quickly erode the minuscule resistance within the British establishment to concede to any EU demands.

To say therefore that this transitional arrangement is unacceptable, even if by some miracle a new deal could be signed in 21 months with no continuity, is hardly the language of “swivel-eyed loons.” It is merely stating what over 17 million people voted for in June 2016 – in other words, we must leave the European Union. Adopting the transitional terms on the basis of the Commission and Council documents would be like having a dance on Pont St Bénézet in Avignon – once the fun is over, your only choice is to walk off the bridge at exactly the same place where you walked on. In other words, we would not be out of the EU in any meaningful sense of the term – not in 2019, not in 2021, maybe not ever. It is a complete surrender – the worst of all worlds. The sooner the likes of Claire Perry, David Davis and indeed Theresa May realise this, the better.  If they don’t, their party will face the wrath of voters all too soon and could find itself in the middle of its worst crisis since the repeal of the Corn Laws in 1846. Thankfully one MP has realised this. His colleagues need to  wake up quickly. It really is that serious.

 

Photo by Dano

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14 comments

  1. Niall WarryReply

    I think you should make it VERY clear that while JRM is correct about the disastrous Transitional or ‘Pay no Say’ deal, offered by the EU, that Mrs May looks like wanting to agree to he (JRM) does not, with his ‘Hard Brexit’ stance, offer a workable solution. In fact if we adopt the policy of the Tory Ultras we will inflict a huge amount of damage on this country.

    We are in this pickle all because our PM is so ignorant, stubborn, inflexible and incompetent that at the start of Brexit she announced that we would not remain in the Single Market (SM) failing to realise that joining Efta and thus the European Economic Area (EEA) we would have access to the SM, could control F of M, come under the EEA court and not ECJ as well as being free to conduct trade deals with other countries around the world.

    This sorry state of affairs shows up the Conservatives, under Mrs May, as completely incompetent.

  2. Phil JonesReply

    It is now … simply … time to go. The one-sided rubbish that the EU would impose in a transition period is a total non-starter. If Mrs. May (or better, a quickly-found replacement such as Jacob Rees-Mogg) wants Big Business and small business to make the transition, they have to be told now to be ready to transition to WTO on 29 March 2019. It won’t be the ‘cliff-edge’ that the Remainers like Hammond love to paint but it will be a ‘doorstep’ to be crossed. The important thing for businesses of all sizes is that they be told within the next month that the UK is in fact leaving the EU without a trading agreement on 29 March 2019. That gives them over a year to prepare for the exit. Mrs. May and Mr. Davis are going nowhere with their slow bus to China. Time for Mrs. May (or a fastly-chosen successor) to signal that the political leaving date is also the transition date for business. It’ll be a bit bumpy but we’ll survive. The UK has endured much greater upset in the past — like on 3 September 1939. We’ll be alright. We’ll have our freedom of self-government back, and that’s everything. But time is short so Mrs. May: GET MOVING.

  3. Jeremy SindallReply

    We mustn’t allow May to sign us up to a “pay no say” deal. No deal is way better than a bad deal. We need a leader/government that’s positive about Brexit. While Europe argues we can be trading.

  4. Adam HileyReply

    May Davis Rudd and Hammond must go now if Rees Mogg becomes PM He will be more than of a match for a chancer like Corbyn who must be kept out at all costs britishconstitutiongroup.com

  5. Ken WorthyReply

    Excellent article. The government seems to be squaring up to the EU for another fruitless fight over a series of so-called red lines, all of which would be immediately available if we joined EFTA or the EEA for the transition period. EFTA countries are not part of the CFP or the CAP, not under ECJ jurisdiction, can negotiate their own free trade agreements and can refuse to accept new EU rules.
    The government seems completely unaware of this, and is ploughing on into yet another series of defeats and climbdowns in an attempt to get a bespoke deal

  6. John AshworthReply

    Because so much time has been lost on chasing rainbows, we don’t have many options left. To go into this transitional period could bring horrendous legal problems, which we might not recover from for decade. or even get out of the EU.
    The irony is the Rees-Mogg’s are condemned if they say not enough and slated if they say too much, but without them we will never stop the transition, so lets take on one target at a time, win and move on, we are not strong enough to do everything at once.

  7. JacqReply

    I am not a lawyer, but it looks very messy. An Article 50 clause might not be needed if there is a strict time limitation, such as an expiry date of 1st January 2021, but this begs the question as to whether the EU will drag its heels to find new reasons to keep extending the stitch-up agreement. Heads they win, tails we lose.

    Backbench Tory Mps really ought to be writing to the 1922 Committee to sack May, as she is clearly untrustworthy as PM.

  8. Niall WarryReply

    I notice Ken Worthy is the only one talking sense on this topic as trading with the EU countries is not the same as being involved in the politics of the EU which we of course must leave.

    80% of the EU’s acquis concerns trade and most of these have come down from international bodies.

    If on leaving the EU we want to trade with the Single Market and other countries around the world there will ALWAYS be costs , rules and regulations to follow and an adjudication process to sign up to.

    The ‘walk away’ brigade are dangerously wrong as I fear is JRM, who I personally rather like, but on Brexit he is not up to date which is a bit like his double breasted suits!

    “With Efta/EEA all our troubles go away!”

  9. Ian HolmesReply

    This so called ‘cliff edge’ which remoaner Hammond likes to bleat about at every whingeing opportunity does not concern 95% of British companies and they only trade within the UK and not the eu (yet, they still have to comply with 100% of eu regulations). Only 5% trade with the eu, and that is an argumentative figure as any exports from the UK landing at say Rotterdam container port for onward travel to a destination anywhere in the world but the eu, is still designated as eu trade, under eu trade counting rules.
    As usual, our woeful government (and Labour or the Glib-Dems would have acted entirely in the same manner as the Cons are now) are snatching defeat from the jaws of victory.
    As they are largely dictated to by the pro-eu and not-so civil service, I don’t see how Mrs May-or-may-not is going to salvage any credibility when dealing with an eu hierarchy led by bloated and pompous nonentities who see themselves as rather grand instead of the little ex-council employees they once were.
    Sadly, David Davis has crumbled under any sort of pressure, just as he did when he tried for the Conservative leadership and came up against the smooth charmer David Cameron, and he and his team will rightly go down in history as the ‘Del-boys’ of a woeful cabinet of half wits and incompetents, thinking that their blase ‘back of a fag packet’ attitude will carry the day, when in reality they are hopelessly outgunned and outmaneuvered at every twist and turn of these sham negotiations, and none of whom would last five minutes in the private sector except as a non-executive director figurehead in a blue chip company, which is what most of them will end up being.

  10. Niall WarryReply

    Ian Holmes – As they say in the military you are on permanent send and not listening.

    Our tade within the Single Market is worth £250 billion, which is not insignificant, and the rules and regulation applicable to trade in the SM and elsewhere originate from international bodies.

    So companies in this country have a choice they can use, what would be considered ‘inferior’ internal rules or meet the requirements of international standards.

    I repeat 80% of the EU’s acquis concerns trade and most of that originates from internation bodies.

    As to our politicians of all colours understanding of the EU they are all woefully ill-informed.

  11. Adam HileyReply

    lets point our nukes towards Brussels not Moscow remove Dithering May now and stop the ghastly Comrade Corbyn dead in his tracks

  12. Gordon WebsterReply

    Davis is one of Plato’s Cave Dwellers (Socrates). The first lesson you learn in Sales and Marketing, is you must believe in yourself and your product, or you can’t expect anyone else to.
    I don’t think Davis does.

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