Mrs May:- a product of the past

The Deeper Malaise behind Mrs May’s Inept Handling of Brexit

The European Union Carried on by Other Means

Mrs May is a product of the past and this shows in her poor political leadership and shambolic handling of the Article 50 negotiations, which are currently going in the direction of a Brexit in name only.  The past to which I refer is the culture of increasing political deference to the European Union (EU) and dependency which goes back to Edward Heath and has been continued by subsequent Conservative and Labour prime ministers up to the present day.  Over a period of years, it has evolved into a paradigm (or conceptual framework of ideas, assumptions and perceived wisdom) which set the direction for many subsequent policies and actions.  The only notable exception to this past paradigm is (perhaps) Mrs Thatcher who claimed to be inspired by free market economists Friedrich Hayek and Milton Friedman. Unfortunately, only at the end of her premiership, for example, in her famous “no, no, no” speech  did she stand up to the EUs centralising control freaks and arrogant ideologues and only after being deposed from office did she advocate leaving the EU.

Escape from (conservative) Reality into the EU

At the heart of any notionally conservative party is a major dilemma for its strategists and leaders:- how to expand its popular base beyond the core support of the conservative minded, the sort of people who make up the majority of party members.  This means, in effect, developing a second unique selling proposition rather than making traditional conservatism popular among many.  Tory strategists believed that they needed to project an image, though not necessarily a reality, of eclectic, inclusive modernity.  At one time, the EU appeared to provide this modernity. It could, therefore, be accepted for political expediency even if it contradicted core values or British national interests.

The EU comfort zone for Politicians and Public Servants

For any prime minister, regardless of political label – and also for the Civil Service – the EU provides a useful comfort zone.  There is the appearance of eclectic modernity, a ‘world stage’ on which to strut, a means of escaping responsibility and the respectful acceptance by equals and their subordinates.  Simple, just follow the EU’s (mainly greater German) social, political, economic, regulatory, monetary and fiscal lead.  Who wouldn’t find this reassuring especially as it offers an escape from political turbulence and the need to be competent while providing a means of avoiding blame should any major mistakes become public?

The EU’s corrupting comfort zone

The uninviting (and courageous) alternative to the EU’s comfort zone requires a Prime Minister who is to be accused by opponents of being insular, parochial, jingoistic, elitist, ‘out in the cold’, ‘out of step’ with the EU and/or ‘behind the times’.  Small wonder Edward Heath’s successors became such EU-centric ‘modernity’ idealists who were prepared to deceive the public whilst selling out British national interests and sovereignty.  Mrs May would need to be a very determined person to escape the strong force of this ingrained political behaviour, going back over forty years.

The EU undermines UK Governmental competence

As ever more activities of government were transferred to the EU over the last forty odd years there has been a hollowing out of competence, though not necessarily of numbers, in the Civil Service. The result is that in many fields the expertise and motivation required by the government of a sovereign country no longer exists within the UK.  As a newly-independent country it will take time to re-establish missing expertise and then achieve positive results in our national interest.

The Referendum Vote for Brexit caused a paradigm shift

Times have changed.  The 17,410,742 voters who backed Brexit in the 2016 Referendum have decided the EU is not the future which they want for our country.  This is a major paradigm shift with wide-ranging long-term implications. The EU is now the past and modernity is being redefined as embracing exciting future possibilities outside its claustrophobic clutches.  The new modernity has not yet solidified into a paradigm and can potentially include anything from re-invigorating democracy with a more collaborative form of government to re-discovering world leading skills based on long standing national strengths, heritage and culture. For more on this, see The National CV .

Mrs May is failing to adapt to the new Brexit inspired modernity

Mrs May is having considerable difficulty elucidating a new post-Brexit vision to accord with the Referendum’s paradigm shift and resulting new modernity.   She is stuck in the obsolete paradigm. Dependence and deference to the EU is so ingrained into the structure of No. 10 Downing Street that Mrs May can’t let go of the past and the old EU-centric view of modernity.  There is little or no evidence of her using Brexit as a great facilitator for tackling the big issues facing our country. Instead, her mindset is  rooted in the spin, language, actions and policies of the past.

Talk of ‘A deep and special relationship with our European partners’ is more a cry for continuing belonging than a confident assertion of independence.  Worse still, the EU has been allowed to make the running with Mrs May, Mr Davis and the Department for (not) Exiting the European Union repeatedly caving in to its increasingly unreasonable demands. At the moment, the worst legacy of these cave-ins is the appalling Transition Deal which would make this country into a temporary then a permanent EU vassal state. There is also, to highlight a few others, the surrendering of UK fisheries, defence and defence procurement to EU bureaucrats and the enthusiasm to allow British citizens to be subject to the worst justice systems in the EU through the retention of the European Arrest Warrant.

The EEA/EFTA Paradox

Whilst obviously being unwilling to leave control by the political EU, Mrs May somewhat enigmatically chose to leave the existing frictionless trading simplicity of membership of the Single Market (and wider European Economic Area, EEA).  She has never explained why this reckless decision was made without a practical plan for leaving the EU which would still allow us to retain near frictionless trade.

However, gullibility and ignorance are hinted at in her Lancaster House speech 17th January 2017 where she appears to have accepted the disingenuous claims of the EU leaders regarding the inviolate nature of the four freedoms.  In reality, the EU is happy to break these principles when convenient so to do. For example, the EU’s proposed Withdrawal Agreement, Article 13 (Protocols NI) allows the EU or the UK, amongst other things, unilaterally to restrict immigration from the other party (to the agreement). In other words the EU can restrict immigration into the remaining Member States from the UK, and the UK can restrict immigration from the remaining Member States into the UK.

Nowhere to hide

A policy of spin and handing over more and more political decisions to the EU no longer cuts it post-Referendum.  Endless vacuous mantras and blaming the EU for failing to deliver a successful, opportunity filled Brexit is sounding increasingly unconvincing outside the Westminster bubble.  With time running out, the country needs to know the truth. Mrs May probably already knows what she must do to save Brexit from being in name only and to prevent trade with the EU facing severe disruption.  The only viable option is to re-join the free nations of Europe in The European Free Trade Association (EFTA) whilst temporarily remaining in the single market under much more flexible and favourable conditions in a bespoke version of the EEA Agreement.  (further information see  The EFTA/EEA Solution to the Current Brexit Impasse, Brexit Reset, Eureferendum.com, various posts on Campaign for an Independent Britain and affiliates)

Moving onto this escape route (from the EU with the least potential disruption to existing trade) in the coming crisis will need effective crisis management and something like a modern day Brexit Operation Dynamo.  Will Mrs May deliver or should the Conservative Party expeditiously choose someone else who can?

Brexit’s ‘Operation Dynamo’ via the EFTA/EEA Escape Route

Fast action is urgently needed to save Brexit

An improvised emergency operation is needed to extract our country from the European Union (EU) just as in the early summer of 1940 the original Operation Dynamo was required to rescue the British Expeditionary Force (BEF) from occupied Europe.  And, as with the original, it will include a motley collection of ordinary people helping out under professional direction, since Mrs May’s government cannot do it alone.  As the days pass, the urgency becomes greater and our plight more desperate. There is no tangible Brexit progress under Mrs May’s leadership and with the rule-bound control-freak EU, ‘nothing is agreed until everything is agreed’. The two options seem to be to accept the EU’s terms or let highly integrated trade with the Single Market (and wider European Economic Area, EEA) face huge disruption after we leave.

Mrs May has boxed us into an ever smaller dead end

Mrs May has seemingly left herself with no options apart from accepting the EU’s increasingly demanding terms in order to deliver frictionless trade with the Single Market and wider EEA, along with a soft border in Ireland. All imaginary technical solutions and customs partnerships or unions have already been rejected by the EU. In any case the government doesn’t have a stellar record of delivering complex IT projects to specification, on time and within budget. Further, it is membership of the Single Market (or EEA) that delivers near frictionless trade, between members not participation in a customs union.

Brexit in Name Only is coming

Brexit in name only with the UK firstly a temporary and then a permanent EU vassal state can be the only outcome unless Mrs May changes direction. This is the case whether or not she caves in to the EU’s demands. Even if she got her flimsy free trade agreement (FTA) and whimsical mutual recognition of standards, the concessions required from her by Brussels would still mean that we are a vassal state in everything but name, with the EU able to ‘turn the screws’ at any time. And frictionless trade with an FTA is a fantasy.

The EFTA/EEA Escape Route from EU Occupied Europe

Rather than being trapped under EU hegemony, which is what Mrs May is leading us towards, we could remain in the Single Market under different, much more flexible conditions by re-joining the free nations of Europe in the European Free Trade Association (EFTA).  The EFTA/EEA route is a far better way of enabling us on 29th March 2019 to leave the political EU and its alien, autocratic straightjacket whilst still trading, as now, with the Single Market. As a temporary measure. it could buy time for FTA negotiations. (see also here, Brexit Reset, Eureferendum.com)

The EEA Agreement is the key to EFTA/EEA participation

The EEA Agreement, with its Annexes and Protocols, determines how the EFTA countries participate in the EEA. This agreement is regularly amended to suit the interests of the participating EFTA countries – each country has its own variation.  Hence by taking the existing off-the-shelf versions we could adapt them to produce our own bespoke version to suit our needs and then at a later date, revise it as many times as we so desire to correct errors and customise it further to suit our needs and as conditions change.

The Free Nations of EFTA are Our Brexit Rescue Partners

Any EFTA/EEA negotiation, unlike the EU Article 50 negotiations, would be a collaboration not an adversarial confrontation, and would be conducted within a different environment.  Such a negotiation  would involve amending the EEA Agreement to improve it, in both our and our EFTA partners’ interests.  And their expertise built up over many years would be invaluable.  This would also go some way to making amends for Mrs May’s betrayal of EFTA by deciding to leave the Single Market (and wider EEA), and leaving them out of any negotiations.

Key Items for the UK EFTA/EEA Agreement

We need our version of the EEA Agreement positively to address our major national interests, in particular, near frictionless trade and control of immigration. Frictionless trade is mainly about dealing with technical issues so that existing arrangements can be retained without introducing new barriers.  Control of immigration concerns strengthening existing arrangements in the EEA Agreement (Article 112, the Safeguard Measures). These would already allow us unilaterally to manage immigration.  However, in the UK there are permanent economic, infrastructural and societal factors which would justify introducing specific clauses to strengthen the right to retain permanent control of migration.

Stakeholder Working Groups for frictionless Trade

Delivering near frictionless trade is where the bulk of the work in amending the EEA Agreement would be needed, as it must cover a wide range of economic activities from aeronautics to zoology.  This is obviously beyond the competence of Mrs May, Mr Davis or the Department for (not) Exiting the European Union. Yet untapped real expertise exists amongst the various (industry) stakeholders who are already familiar with relevant EU/EEA legislation and working practices.  These people would be highly motivated to solve any issues, once they recognise the government’s limitations, since their livelihoods often, in part at least, depend on frictionless trade.  Multiple working groups from industry can function concurrently, whilst learning from each other and ‘comparing notes’ to speed up their ‘learning curves’.  The inclusion of public consultations and publication of drafts could add considerable transparency to their activities, whilst moving the process away from destructive political in-fighting.

Preventing Abuse of the EEA Agreement

The EU doesn’t want us back as a troublesome full member state. As an EU vassal state, they can get everything they want from us.  However, it would be prudent to send a strong message to EU ‘fifth columnists’ that the EFTA/EEA agreement cannot be subverted – that it must always be used for its original purpose to provide access to the Single Market for free European nations (i.e., those outside the EU).

Brexit’s Operation Dynamo can be made to work

It is all straightforward project management, not rocket science, and much less risky than Mrs May’s fraught and furtive Article 50 negotiations. For starters, it need to:  address resourcing requirements; build competences; set objectives, priorities and timetables; manage risks and co-ordinate efforts. This is merely following a systematic document preparation process, which can be adapted to build in various procedures, checks, controls and risk mitigation measures. Many industry specialists do this sort of thing all the time, for example, under the aegis of the British Standards Institution. There may also need to be continuity planning to keep trade moving under existing arrangements until the EFTA/EEA bespoke UK EEA Agreement can be fully adopted. This would not be difficult since we would be staying in the EEA anyway.  Work carried out now and resources developed could also be useful in the years to come in developing international trade and reforming the Single Market.

Other Lessons from the Original Operation Dynamo

The original Operation Dynamo was a collective effort of improvisation in a short time – it worked better than expected in a national crisis. It provided a hard lesson about the pitfalls of insular complacency and laid foundations for a future national cooperative effort.  A new crisis is coming as a consequence of Mrs May’s shambolic negotiations and recklessness in deciding to leave the Single Market without a plan for frictionless trade.  Just as in 1940, we need a committed, courageous and practical prime minister. Is Mrs May the person? I’ll let you decide!

The EFTA/EEA Solution to the Current BREXIT Impasse

Implications of current Brexit negotiations failing

Mrs May’s government, without any practical Brexit plan, has created a mess and time is running out. Without a practical solution to the soft border in Ireland there can be no transition deal and, therefore, no withdrawal agreement.   Without one, the UK would leave the European Union (EU) on 29th March 2019 with no arrangements in place to continue trading with the Single Market (Internal Market or wider European Economic Area, EEA).  Such a situation (often called ‘falling off a cliff edge’) would be hugely disruptive to the existing highly integrated trade with the EEA and would impact the wider UK economy.

Government Proposals lead to Brexit in Name Only

However, should the government succeed in getting the EU to accept its proposed solution(s) to the Irish border and to wider trade with the EU, the outcome is likely to be Brexit in name only. Worse, the UK would become firstly a powerless temporary vassal state and then a permanent one under increasingly arduous EU imposed conditions, such as sacrificing the UK fishing industry, surrendering UK defence and defence procurement to the EU, paying substantial amounts into the EU budget, accepting a continuation of free movement (uncontrolled EU immigration, with extra rights for EU citizens), unconditional compliance with all existing and future EU laws, remaining under the EU’s European Court of Justice (ECJ).

Mrs May’s approach to Brexit is the Problem

Yet this unwanted situation is of Mrs May’s making by her seriously reckless decision, first mentioned in her Lancaster House speech, 17th January 2017, to leave the Single Market on Brexit day. Whilst leaving may be desirable in the long term, it is hardly practical now and her proposed solutions of mutual recognition of standards and a free trade agreement look increasingly unrealistic and counter-productive.  Her wishful thinking, dithering and failure to understand how the EU and EEA works, have only made matters worse.

A simple EFTA/EEA Solution to Mrs May’s Brexit Problems

Many of the problems Mrs May has created can be solved by remaining within the Single Market (even temporarily) via a different, more flexible route.  Such a route is available if we re-join The European Free Trade Association, EFTA, assuming they would have us back.  Whilst this cannot be taken for granted, it would be advantageous to the existing EFTA/EEA countries (Norway, Iceland, Liechtenstein – Switzerland is outside the EEA) giving the overall grouping greater robustness.  The EU has hinted that it could accept this as an option to achieve an orderly Brexit.

Criticisms of EFTA/EEA (aka The Norway Option) can often be resolved through research using original or reputable sources via the internet (e.g. here).  However, there will always remain the opportunity for the EFTA/EEA option or any other suggestions to be misrepresented by the unscrupulous or ignorant.

EFTA is a Trading Association without political aspirations

Originally set up by, among various countries, the UK, EFTA is not a stepping stone to EU membership or even to associate membership of the EU. EFTA existed before the creation of the Single Market. As its name suggests, it was  – and indeed is – purely a trading bloc. However, EFTA countries can participate in the Single Market on the basis of the EEA Agreement.

EEA Agreement is Flexible and Customisable

The basic EEA Agreement  is amended from time to time (through additional Annexes and Protocols) as it applies to each of the EFTA members. It is not a ‘one size fits all’ approach and is customised to fit each’s requirements.  Thus we could get a bespoke agreement by taking and amending the existing ‘off the self’ versions.

Control of EU Immigration into the UK

Article 112 (the Safeguard Measures) of the EEA Agreement provides a mechanism for the UK unilaterally to control immigration from the EU. Similar wording has already been copied by the EU into their draft Withdrawal Agreement (Article 13, Protocols relating to Northern Ireland) effectively allowing the EU unilaterally to limit immigration into the EU from the UK.

Agriculture and Fishing are outside the EEA

The EU’s Common Fisheries Policy and the Common Agricultural Policy are excluded from the EEA Agreement. We could therefore regain control of our Exclusive Economic Zone  next March without having to ask the EU.

Laws relevant to trade in the EEA

The EU acquis (or body of laws) relevant to trade comprises about 25% of the total EU acquis and in 90% of cases reportedly originates from higher (global) bodies.  We would need to comply anyway in order to trade elsewhere, unless we chose to leave organisations such as the World Trade Organisation.  The rest of the EU acquis does not apply unless we choose to adopt any which we could modify as required at a later date.

Almost  frictionless trade within the EEA

It is membership of the Single Market (or wider EEA) and not membership of a customs union that delivers nearly frictionless trade with the EU for countries like Norway. This is because each member is working to common standards and processes (harmonised) for product, production, market surveillance and conformity assessment under a centralised system of bureaucratic control by the EU.  The EU’s Guide to the implementation of directives based on the New Approach and the Global Approach explains what applies to many products.

External Border Controls protect the EEA

By contrast, accessing the EEA from outside its external borders involves complying with regulations, inspections and testing, processes and procedures, external tariffs, customs checks/clearance, VAT etc. intended for dealing with ‘third countries’.   These provisions, effectively border controls, also manage safety and other unacceptable risks to EEA members, consumers and enterprises involved with ‘imports’ and are sometimes protectionist.

There also need to be arrangements to control diseases and parasites etc. in imported livestock, products, plants, packaging etc. from ‘third’ countries.  According to EU law, products of animal origin (meat and meat products) imported into the EU must be inspected (sanitary checks) at Border Inspection Posts (BIPs). For products of plant origin (for plants and plant-derived foods) phytosanitary checks are required at Community Entry Points (CEPs, Designated Ports of Entry). It is a nightmare and this is what we would face next March if Mrs May persists in her stubbornness.

EEA Membership allows participation in critical trade related decision making

A mechanism exists for EFTA members to participate in shaping decisions by the EU, which is described here.  Unlike EU Member States, EFTA members also freely participate in global bodies helping to form standards and practices before these are passed down to the EU for implementation.

Free Trade Agreements

Both EFTA as a whole and individual EFTA countries are free to make their own trade agreements, unlike Member States of the EU or of its customs union.  EFTA countries do not operate common external tariffs.

EEA Membership is Free

For EFTA countries, EEA membership is effectively free although they do ‘voluntarily’ contribute to the specific agencies they participate in and to development grants. We could pick and choose.

Judicial Oversight of EFTA/EEA by the EFTA Court

The EFTA Court is independent of the ECJ although it can take into consideration or follow ECJ rulings. It does not take precedence over national courts enabling the UK, if we so choose, to ignore any of its judgments.  The European Commission could object but we could then ignore it too.

Quitting the EEA at any time

Article 127 of the EEA Agreement covers the process which involves giving 12 months’ notice.  Unlike leaving the EU, no payments and negotiations are required.

Further Information

The EFTA/EEA option and Brexit debate in general has often suffered from misunderstandings or errors and mischievous misrepresentation effectively inhibiting rational discussion.  The following are useful sources of research information: Brexit Reset, Eureferendum.com, various posts on Campaign for an Independent Britain and affiliates.  For consequences of a No Deal situation, see the EU’s Notices to Stakeholders under Brexit preparedness.

The Way Ahead to Independent Sovereign Nation Trading

The EFTA/EEA route could salvage the faltering Brexit process, at least as an interim measure. It would facilitate leaving the political, centralised, anti-democratic construct of the EU whilst still retaining (and expanding) almost frictionless trade.  It could also provide a springboard for a highly successful trading relationship for independent sovereign nations in Europe.

Mrs May’s flimsy free trade agreement with the EU

If and when Mrs May, Mr Davis and the Department for (not) Exiting the European Union eventually  finalise a Free Trade Agreement (FTA) with the European Union (EU), it could potentially render the UK somewhat powerless against EU hegemony.  It will most certainly not be “taking back control” in any meaningful sense of the term, instead it will give the EU carte blanche to ‘turn the screws’ on the UK any time it wishes.  This potentially painful situation arises as a consequence of how the Single Market, the EU and our own Government, including the Civil Service, functions.

As first stated in her Lancaster House speech 17th January 2017, Mrs May recklessly decided to leave the Single Market (and the wider European Economic Area, EEA) when the UK notionally leaves the EU on 29th March 2019. As a result, under current plans, we will become either a temporary or permanent Vassal State of the EU. In place of membership of the Single Market, she is proposing an ambitious Free Trade Agreement (FTA) which, she hopes, will offer a continuation of existing stable ‘frictionless’ trade with other Member States of the EU and avoid trade ‘falling off a cliff’.  In the real world, trade deals with the EU are usually complex and slow to negotiate, taking several years. However, Mrs May and Mr Davis still believe it can be negotiated and finalised in a matter of months. At first, they hoped to have everything signed, sealed and delivered before next March when we leave the EU. Now they are aiming for 31st December 2020, 21 months later, following what the EU calls the “transition period” although misleadingly referred to by Mrs May et al the ‘Implementation Period’.

By any standards, the negotiating timescale for the FTA is very short and likely to be further shortened due to delays in fully agreeing the necessary terms within the Withdrawal Agreement for the Transition Period. Given Mrs May’s desperation for a deal, the ticking clock is a recipe for concessions being made on the UK side. Unless closely monitored and exposed, the many mistakes and concessions she is likely to make may well only show up later when both parties start implementing the complex and wide-ranging FTA.  Shortcuts and inadequate assessment of the details and their consequential implications are likely to be the order of the day.

The British negotiating side is further hampered through a general lack of motivation and expertise in intra-governmental negotiations in Government, Parliament and the Civil Service.  After kowtowing to the EU and its executive (the European Commission) for 43 years, our government has lost much of the acumen necessary to govern a sovereign country competently and responsibly. In any case the responsibility (‘competence’) for negotiating FTAs rests with the EU.

Once competence built up over many years is outsourced to the EU, it is rapidly lost and extremely difficult to reacquire in a short period.   The Civil Service, reduced to little more than a rubber-stamping organisation for EU directives could prefer to remain under EU leadership as it makes for a quieter decision-free and responsibility-free life.  This would explain their willingness to acquiesce to EU demands.  This seems to be the case with defence and defence procurement where the plan appears to be for increasingly close integration with the EU.

The EU negotiators, on top of their subjects, are running rings around our negotiators, who are repeatedly caving in to their demands and agenda. The EU’s negotiators are demonstrating a level of competence that is far superior to that of Mrs May, Mr Davis and Department for (not) Leaving the European Union.  Their dedicated website and Notice to Stakeholders (under Brexit preparedness) are not replicated on this side of the Channel.  A major consequence has been that the EU has effectively been in the lead all the time, dictating the terms for the negotiations and setting demands far outside what they are reasonably entitled to. For example, Article 50 negotiations were originally intended to cover financial arrangements for a Member State leaving the EU, nothing more.  Now, however, the EU wants to control UK fishing during the Transition Period through a continuation of the Common Fisheries Policy and still to manage our fishing afterwards – at least, what little is left of it – by treating it as a common resource.  The EU’s position is becoming more uncompromising slipping in further demands outside those strictly necessary for trade.

Another major weakness on the UK’s side is a lack of understanding of how the EU and the Single Market (or wider EEA) function.  The aspirations of ‘frictionless’ trade through an FTA and a soft border on the island of Ireland cannot be achieved by anything so far suggested by the UK side, as the EU has repeatedly pointed out.  Leaving the Single Market (or wider EEA) on 31st December 2020 (when the Transition Period is meant to end)  makes the UK into a ‘third’ country, nominally outside EU control, and subject to the same treatment as any other ‘third’ country trading with the Single Market (or wider EEA).  It is membership of the Single Market AND NOT THE CUSTOMS UNION which delivers customs cooperation between Member States across a range of products and frictionless internal trade.

The EU’s approach to most products within the Single Market is outlined in principle in COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT Enhancing the Implementation of the New Approach Directives and in more detail in the EU’s Guide to the implementation of directives based on the New Approach and the Global Approach and encapsulated in EU law in REGULATION (EC) No 765/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 9th July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93.

The EU’s guide, in describing the processes involved and their overall approach, also provides an indication of where future problems could occur and how out of touch with reality Mrs May and Mr Davis are.  At any time the EU can legally ‘turn the screws’ on us when it comes to trade.  Mutual Recognition of Standards or an FTA will not make much – if any – difference, simply because the EU’s negotiators will make sure they don’t.  They don’t have much alternative since to cave-in to UK demands would go against their direction of travel which was determined many years ago. Such a cave-in would set a precedent that could be exploited by other ‘third’ countries.

There is no guarantee that we will get to a Free Trade Agreement. The Transition Deal and Withdrawal Agreement are still far from finalised and, as the EU have stated many times, ‘nothing is agreed until everything is agreed’.  However sacrificing UK fishing, defence and agreeing to continue to adopt existing and future EU laws et al in the hope of one day achieving a free trade utopia is delusional and incompetent.  Hopefully reality will dawn – in particular, the horrific electoral consequences for the Conservative Party of such an abject surrender – in time to change tack. It is not too late for Mrs May to cut off negotiations and pursue a faster, safer and simpler approach to leaving the EU – for example EFTA/EEA explained in some detail in Brexit Reset.  Is it too much to hope that our latter-day Chamberlain may net metamorphose into a Churchill or the second Iron Lady which we so desperately need? “No! No! No!” is the only language which the EU understands. They need to hear it loud and clear from Mrs May or she will soon be hearing it from disgruntled voters.

The fantasy of a “frictionless” trade agreement

Mrs May and Mr Davis’ oft repeated aspiration for ‘frictionless’ trade with the European Union (EU) via a free trade agreement (FTA) and mutual recognition of standards will in reality consign the United Kingdom to being a permanent EU vassal stateBrexit will be in name only, with “stay, pay, obey without a say” being the outcome of their mishandling the Brexit negotiations.  The transition agreement, which turns the UK into an EU vassal state thanks to completely caving in to unreasonable demands by the EU, is a forerunner of even worse things to come. The transition deal (partially agreed, although a long way from being ratified) is vastly inferior to the deal which they could have obtained, but rejected out of hand as far back as Mrs May’s Lancaster House speech 17th January 2017. We could have retained our membership of the Single Market (and wider European Economic Area, EEA) through re-joining, even temporarily, The European Free Trade Association, EFTA. This alternative, also known as the ‘Norway Option’, could have delivered practically ‘frictionless’ trade and a soft border on the isle of Ireland.

At the heart of Mrs May and Mr Davis’ highly risky, far-fetched and delusional approach to Brexit is a failure to understand the nature of the EU, the European Economic Area (EEA), EFTA’s working relationship with the EEA including the EEA Agreement, mutual recognition of standards and how world trade works.  They make the most basic mistakes and repeat factually incorrect or incomplete statements to support their contradictory desire to leave the Single Market while retaining the same level of market access through an FTA.  They appear unwilling to take cognisance of readily available facts that completely disprove their fatuous mantras.

The details of what will happen after the UK leaves the EU (and the EEA) are there for anyone to see on the EU’s dedicated website  – especially in the increasing number of “Notices to Stakeholder”s under Brexit preparedness) It makes somewhat chilling reading.  There is nothing equivalent on the Department for (not) Exiting the European Union’s website. Presumably either they haven’t done this vital work or have chosen not to share it – a truth too awful to tell?

Upon leaving the EU and the EEA we would become a ‘third’ country. We would then be subject to different requirements by the EU in order,  at best, to manage the risks (to consumers and others) of doing business with us (or any other ‘third country’ outside the Single Market or EEA) and, at worst, to erect protectionist trade barriers in favour of domestic EU enterprises.  From the EU’s perspective, they will not grant concessions to ‘third’ country suppliers outside their control which are not enjoyed by EU domestic suppliers, especially when these could increase risks or create an ‘unfair’ competitive advantage.  The EU also has to treat the UK the same as any other ‘third’ country in order to comply with World Trade Organisation (WTO) agreed requirements or principles.

The EU is developing the Single Market by harmonising standards, regulations, and enforcement or surveillance within a top down centralised legalistic and bureaucratic framework under their supervision and control. It is also a long-established declared ambition that ‘third’ countries (outside the EU, or wider European Economic Area, EEA) would adopt or follow at least some EU-style measures.  The EU’s approach (to products) is outlined in principle in COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT Enhancing the Implementation of the New Approach Directives and in more detail in the EU’s Guide to the implementation of directives based on the New Approach and the Global Approach .

For the EU, mutual recognition of standards (which differ from theirs) has limited application, since it is not their preferred choice where harmonised standards (in their widest context) exist.  In any case, there is the practical complexity and increased cost of demonstrating equivalence and compatibility, which can be far from straightforward and unacceptable to consumers and users.  To take a simple illustration, traffic lights using green on top for ‘stop’ and red underneath for ‘go’ certainly provides equivalent functionality but are far from compatible and acceptable.  Also test values from subtly different tests may mean a product is (theoretically) less safe rendering it unacceptable or requiring expensive (or impractical) re-design, which in turn may invalidate other test results and/or existing certification/approvals.  (See also the Fallacy of Easy Mutual Recognition of Standards).

The EFTA/EEA option is not perfect, but is far more favourable to the UK’s interests than the transitional deal on offer or indeed, to what will eventually emerge as Mrs May’s FTA and ‘deep and special relationship’. Norway participates in the EEA through membership of EFTA. Actually it only implements EU legislation necessary for functioning of the EEA, which at most constitutes around 25% of the total EU acquis or system of laws. More than 90% of these EEA related laws reportedly originate in global bodies, meaning the UK would need to implement them anyway for global trade, unless we leave the World Trade Organisation (WTO), et al. Also the EFTA route to EEA membership gives members outside the EU a say in EU legislation affecting the EEA, is largely free (although ‘voluntarily’ Norway does contribute to regional development funds) and is outside the jurisdiction of the European Court of Justice (ECJ). What is more, EFTA members make their own trade agreements with other countries.

Contrary to statements by M. Barnier and Mrs May about the four indivisible freedoms, EFTA/EEA membership contains the facility to control immigration. Two members of EFTA have unilaterally invoked Article 112 (the Safeguard Measures) of the EEA Agreement to restrict free movement – Liechtenstein for people and Iceland for capital. The UK could do so too if we retain membership of the EEA by re-joining EFTA.  Ironically, Articles 112 and 113 of the EEA agreement, which Mrs May rejects, are reproduced closely by the EU in their draft Withdrawal Agreement, Article 13 (Protocols NI), allowing the EU unilaterally to restrict freedom of movement (including immigration into the EU from the UK).

Continuing membership of the EEA solves the problem of maintaining a soft border in Ireland between the Irish Republic and Northern Ireland, thus avoiding a hard border between Northern Ireland and the rest of the UK (something Mrs May has ruled out, for the moment).  It also gives us full control of fishing in our Exclusive Economic Zone.  The EEA agreement (for EFTA members) can be adapted to suit their interests.  Thus the UK (within EFTA) could get a bespoke version.  So we could ‘imitate, adapt and improve’ on the existing EEA agreement to suit our needs rather than follow an insular and amateurish effort to ‘re-invent the FTA wheel in a few months’ that isn’t going anywhere.

From the beginning, the EU negotiators completely dominated the Brexit negotiations. It was inevitable then that negotiating concessions (or cave-ins) would be made by weak, dithering and clueless Mrs May and Mr Davis to strong, decisive and professional M. Barnier and his team. Comparing the EU’s draft Withdrawal Agreement with the text agreed by the UK shows just how much the increasingly uncompromising EU is getting its way.  Worse still, the EU is getting away with demands that are over and above those necessary for trade, with more already in the pipeline (such as fishing, defence, defence procurement, locking UK into EU budgets etc.).  If you thought the Transitional Deal was bad, wait until you see the final withdrawal agreement and the FTA.

The Fallacy of Easy Mutual Recognition of Standards

Mrs May and Mr Davis are opening a Pandora’s Box of complexity, confusion and chaos by advocating the Mutual Recognition of Standards to achieve ‘frictionless’ trade post Brexit.  They appear not even to know the basics, being unwilling or unable to clarify what they mean by ‘standards’, and consequently fail to acknowledge the many subtleties and ‘show-stopping’ problems involved.

Mrs May, in her Our Future Partnership speech at the Mansion House on 2nd March 2018, went no further than to express banal generalities about ‘standards’:

“The UK will need to make a strong commitment that its regulatory standards will remain as high as the EU’s. That commitment, in practice, will mean that UK and EU regulatory standards will remain substantially similar in the future.

Many of these regulatory standards are themselves underpinned by international standards set by non-EU bodies of which we will remain a member – such as the UN Economic Commission for Europe, which sets vehicle safety standards.”

Mr Davis, in his Foundations of the Future Economic Partnership Speech in Vienna 20th February 2018, was similarly vague about mutual recognition and standards:

“Such mutual recognition will naturally require close, even-handed cooperation between these authorities and a common set of principles to guide them.

And the certainty that Britain’s plan — its blueprint for life outside of the European Union — is a race to the top in global standards.

And not a regression from the high standards we have now.”

When they talk about standards, what do they mean? Parameters (for safety, performance, environmental impact etc.) and levels of performance against them? Highly prescriptive laws and regulations covering whatever bureaucrats can think of? Standards published by the International Standards Organisation (ISO) or the European Centre for Standardisation (CEN) or the British Standards Institute (BSI)? Organisations that have statutory duties (under UK and/or EU law) to assess conformity or enforce compliance? All of these? –  or something completely different?

Whilst clarity and precision are prerequisites for any published standard or specification, Mrs May appears to believe she has already been clear in setting out what she wants relating to mutual recognition of standards.  In her statement to the Commons 5th March 2018 Mrs May concluded:

“My message to our friends in Europe is clear.  You asked us to set out what we want in more detail. We have done that.”

Unfortunately for Mrs May and Mr Davis, they are not being at all clear what they want and show no indication of even trying to understand the subject of mutual recognition of standards, which they are so convinced they can get the EU to adopt. Furthermore, the arrangements they appear to be seeking conflicts with how the EU uses ‘standards’ and shows their ignorance of how the EU and Single Market functions.  Mutual recognition, where it exists at all, is being superseded by harmonised standards, processes, procedures, regulation and market surveillance, within a centralised legal and bureaucratic framework. Mutual recognition is the laborious, slow exception, not the fast rule.

The European Union (EU) is seeking to move towards the legally mandated use, without deviation, of harmonised requirements and published European Specifications and Standards, for instance  through its New Approach Directives (which cover many products).  These Directives (which are EU law) contain ‘essential requirements’ covering safety, reliability and availability, health, environmental protection, technical compatibility and accessibility. In turn, these may mandate requirements contained in a dated version of a ‘European specification’ which can be a common technical specification, a European technical approval or a national standard transposing a European standard.  A common technical specification is one which has been laid down in accordance with a procedure recognised by the Member States which has been published in the Official Journal of the European Union.

A Directive will normally only refer to a part (i.e., specific clauses) of a wider ‘European specification’.  European Standards can contain national deviations or special national conditions, but these are then disallowed in the Directive as part of the goal of achieving harmonised requirements.  Derogations (or variations) against requirements in Directives are discouraged requiring the granting of unique or special permission by the relevant authority which increasingly is an arm of the European Commission.  Generally national standards (or rules) can be used only where permitted by a Directive or in the absence of an applicable European specification.

There are published International, European and British standards for materials, components and finished products, processes, systems, management subjects etc. There are also more fundamental ones such as Basic Safety Publications which are intended for use by technical committees in the preparation of standards. Organisations from the UK participate in drafting committees in the ISO, CEN and BSI et al to produce published standards. This involvement will be unaffected by Brexit.

There is also considerable interchange between international standards (ISO, IEC, EN), often with common text or even numbering and cross referencing of requirements.  Also standards first produced by national bodies (such as BSI) can end up being adopted internationally as ISO or European Standards, with some re-drafting.   Generally, International Standards (from ISO, IEC, CEN, CENELEC etc.) are well refined whilst specified requirements in Directives can contain grammatical errors and be mixed with information, thus making them more difficult to follow.

Harmonising standards to produce a single internationally accepted standard and requirements at European or global level makes considerable sense for quality, safety, technical or functional compatibility, production and testing etc. Often, for historical and economic reasons, this is far from being immediately practicable. Perhaps the simplest illustration is paper sizes where the ISO series (which originated in Germany) is not followed in North America leading to endless document reformatting.

Rocking the ‘Standards Boat’, as Mrs May and Mr Davis propose, is a minefield and not for the unwary or ignorant. The above explanation is merely the tip of the iceberg since standards, to be of any use at all, need to be supplemented and implemented within an appropriate legal, regulatory and surveillance framework, which, like it or not, the EU has developed in considerable detail.   They are not going to change.  Consequently to get their Brexit strategy right and ‘deliver a wide range of benefits to enhance competitiveness and performance’ (available from the BSI or ISO), Mrs May and Mr Davis should practise what they preach and race to the top, under independent conformity assessment, by rapidly adopting ISO 44001:2017 (formerly BS 11000) Collaborative Business Relationships