The border which nobody wants

Ar first glance, it seems utterly bizarre. We don’t want to build a hard border fence between Northern Ireland and the Irish Republic and neither do the Irish or the EU. No one wants it but it may nonetheless have to be erected.

The reasons lie with the UK’s change in status. If it leaves not only the EU but also the European Economic Area, it becomes a Third Country. The EU does not permit goods to be transferred across its borders without the necessary customs clearance and the fact that we are going to maintain regulatory convergence with the EU up to Brexit day makes not one iota of difference.

But couldn’t we just agree to treat Ireland differently? In this instance, the rules of the World Trade Organisation wouldn’t allow it. Discrimination in trading arrangements that favour one country over another without any formal trade deal is not permitted – and we can’t strike a bilateral trade deal with the Irish Republic as it has no freedom to negotiate such deals, being a member of the EU. After all, this desire to regain control of trade policy was one of the reasons why we voted to leave.

So it is no surprise that Mrs May came away empty handed from her meeting with Jean-Claude Juncker yesterday. It is hard to read between the lines and fathom out what really went on. Did she really consider a deal which would have seen Northern Ireland end up with separate trading arrangements from the rest of the UK?  Such an arrangement would compromise the constitutional integrity of the UK and thus was never going to be acceptable to the Unionist community in the Province. “Northern Ireland must leave the European Union on the same terms as the rest of the United Kingdom,” insisted Arlene Foster, leader of the Democratic Unionist Party.

On the other hand, the Dublin government insists that EU regulations on issues such as food safety and animal welfare must be maintained in Northern Ireland, to avoid damaging cross-border trade once Britain leaves the EU’s single market and customs union.  However, to repeat, mutual recognition of standards cannot be agreed without a formal trade arrangement and that isn’t going to be on the table any time soon.

Parliament’s Exiting the European Union Committee published a report which  was decidedly pessimistic about the  prospects of a deal given Mrs May’s insistence that we will be leaving the Single Market. “The Committee does not see how it will be possible to reconcile there being no border between Northern Ireland and the Republic of Ireland with the Government’s policy of leaving the Single Market and the Customs Union.”

Quite why the Customs Union has to be dragged into this debate is anyone’s guess. There are seamless borders between non-EU Norway and EU member states Sweden and Finland. This is everything to do with the Single Market but nothing at all to do with the Customs Union, of which Norway is not part.

There can be no doubt about the concern felt in the Irish Republic about the prospect of “no deal”. Comparing the UK to EU-27 as a whole, our country could well end up facing the greater problems in the short term. Some individual countries would not suffer that badly either. Germany, for example, would soon shrug off any decline in trade with one of its major export markets and find others. For the Irish Republic, however, the effect of “no deal” would be devastating. We are the second largest importer of Irish goods and services after the USA, receiving 13% of total Irish exports. We are also the biggest exporter to Ireland, with a 24% share of Irish imports.

Given these figures, you would expect the Irish government to be among the most dovish of EU27. Unfortunately, according to Anthony Coughlan, this is far from being the case. In an e-mail to Edward Spalton, our Chairman, he wrote:

The members of the political Establishment in the Republic of Ireland, dominated as they are by career Euro-federalists, hope fervently that the whole Brexit project can be aborted or made effectively meaningless by doing everything they can to obstruct the EU/UK negotiations and by interacting privately with those cross-party interests that are seeking to test Brexit to destruction in Parliament. Irish policy-makers are doing everything they can these days to encourage this end, egged on by the Brussels people –  while not saying so publicly of course.”

He went on to claim that there was some collusion between Irish Euro-federalists and UK remainiacs: “I have not the least doubt that  key Irish/EU grandees such as Peter Sutherland, John Bruton, Pat Cox  and Alan Dukes are interacting at present with the likes of  Peter Mandelson, Keir Starmer, Tom Tugendhat et al to do all they can to frustrate Brexit in Parliament and that they are being encouraged by Messrs Barnier, Juncker and the Brussels people to do this, with the full support of the Irish Government and Opposition behind the scenes.”

Some eagle-eyed readers will remember that Peter Sutherland, a former European Commissioner, was the person who told the House of Lords that the EU should do its best to undermine the ethnic homogeneity of individual nations by increasing mass immigration. Anyone in this country who is formally associated with this contemptible individual is truly beyond the pale.

Given these serious allegations of troublemaking by Irish politicians, it is unsurprising that Mrs May has been sent a letter signed by a number of Tory MPs, economists and business leaders urging her to take a tough line with the EU, insist on a trade deal and walk away if the EU will not play ball. Add into this potent brew the firm and perfectly understandable stance of the DUP that every part of the UK must leave the EU on the same terms and it is unsurprising that David Davis has found himself having to work hard to find a solution to the impasse. His latest suggestion is that that the whole of the UK, and not just Northern Ireland, should retain regulatory “alignment” – not “convergence”  -with the EU.

Even before any discussion has taken place on what this actually means, however, an un-named EU official has effectively torpedoed the whole idea:-  “The UK will not have any say on the decisions taken in Brussels and will basically implement them without having any influence over them… it makes the UK kind of a regulatory ‘protectorate” of Brussels.‘” Any suggestion that such an abject surrender would be acceptable to the signatories of the letter to Mrs May – or the DUP for that matter – is plainly ridiculous.

It isn’t easy to separate the wood from the trees in the current flurry of activity, but it is looking highly unlikely that the Brexit negotiations will be moving on to the next stage (i.e., trade talks) after the critical European Council meeting later this month. The deadlock over the Irish border issue is raising the stakes higher by the day and it would be a brave man who would place any money on what the eventual outcome is likely to be.

Photo by Michael 1952

Where our negotiators are going wrong- Part 2

Article 50 of the Lisbon Treaty – or, to quote its proper name, the treaty of European Union (TEU) – is clear and precise with the added advantage that 27 Member States agreed its terms and all 28 current Members reconfirmed these provisions through the Accession Treaty of Croatia. So there can be no legal comeback when the Treaties cease to apply to the UK at 23.01 on 29th March 2019, and competency (control) of our Fisheries Exclusive Economic Zone (EEZ) ­of 200 nautical miles or median line becomes the responsibility of every single Member of Parliament in Westminster.

We will see the UK leave the Common Fisheries Policy, (CFP) and our EEZ will be operated under the guidance of international Law – UNCLOS3 – well, that is the theory.

Things do get more complicated, however, as Our Westminster Parliament is proposing to bring all the EU legislation in force up to 29th March 2019 (the Acquis), into domestic legislation, and this will include the CFP. This means that, having left the CFP legally and with the full support of all EU member states, our Parliament will then endorse what we have left through the European Union (Withdrawal) Bill. It will not be the CFP in name, but a carbon copy of the CFP, giving exactly the same rights to EU vessels in our EEZ as they currently enjoy.

It is a pretty poor outcome for our negotiators: All 27 EU member states have returned the competency back to Westminster and Westminster then passes a law giving those rights back.

The Government claims that it will also introduce a Fisheries Bill. At the moment, however, we have no idea of its contents or whether it will be robust enough to ensure UK control of our EEZ enabling us to introduce a UK system of fisheries management during the next stage of the Brexit plan – the two year transitional period also known as implementation period.

The Government does not wish to apply for an extension of the two years stipulated by Article 50, because it is concerned that the 17 plus million voters who supported Brexit will turn against them. Taking nearly three years to leave the EU is just about acceptable but five years would not be tolerated. The Government would be punished at the general election.

So the date of 29th March 2019 will remain as the date of leaving, and at 23.01 of that day we will no longer be a member of the EU and will become a “third country”. This means that all EU treaties cease to apply within the UK, including Article 50 of the Lisbon Treaty, so while the transitional period will be negotiated under Article 50, the actual implementation of that period will have operate under a different legal basis – a new treaty.

Both the European Commission and the European Parliament (which has a final say on any agreement), have made it very clear that no non member can have the same terms and conditions as a member, which is rather obvious otherwise there would be no point being a member.

One issue of which we can be sure is that, irrespective of the Fisheries Bill, the EU will demand that any implementation treaty must include the Fisheries Acquis and being a treaty, we could find ourselves falling foul of the Vienna Convention on Treaties, especially article 30 and 70, if the EU, a single member state or individual challenges the rights if our own Parliament rescinds what they  established. We could end up in a lengthy legal process.

This transitional/implementation period will be under the full authority of the EU institutions, including the ECJ, but there will be no UK representation at all. Even though the Secretary of State for Exiting the EU stated at a select committee session on 25 October 2017 that no new EU law will be acceptable post Brexit because it will be sorted before Brexit, no cherry picking will be allowed, so we would have to accept any new legislation during that period.

For the past 30 years, successive governments and main political parties have claimed that we hold a considerable degree of influence within the EU, but from April 2019 to March 2021 (perhaps 2022 as the European Parliament would allow up to three years), we would in effect be governed by the EU, as a third country, with no input whatsoever.

The Prime Minister and Ministers have made it very clear during this period that would adhere to International Law on fisheries. It is absurd that over the years, many UK political leaders have condemned the Common Fisheries Policy and yet our own Parliament could end up unilaterally implementing the very policy they condemn. Furthermore, this would not comply in any form to the requirements of International law, UNCLOS 3, especially Article 61 (Conservation of the living resource), Article 62  (Utilization of the living resource), Article 63 (Straddling stocks) and Article 64 (Highly migatory species).

Fishing for Leave has  produced a management plan/model, designed by those with practical experience, for the UK’s fishing EEZ that ticks all the boxes. It is environmentally sustainable, follows International law, creates harmony between fishermen, scientists and fishery officers, while at the same time if will engender a revival of our coastal communities. This plan is based on the Faeroe Islands’ “days at sea” principle, but it has learnt from the Faeroese’ mistakes and is an improvement on the original crude “days at sea” model The Faeroese Government is impressed and is now extremely interested in the FfL model. By contrast, the alternative, which we could yet end up with, is a carbon copy of the present CFP. It will be a complete failure  – socially, environmentally, and economically – and could end up giving the Nation’s resource away permanently.

There are those that appear to think that as far as fisheries is concerned, the UK will still be subservient to the EU after Brexit. With our mixed fisheries, which requires its own plan, we should be the world leader. We will never get another opportunity to do this and it is down to political will. The buck stops with every Member of Parliament in Westminster; the potential is there to make Brexit either a huge success, or a catastrophic failure. Failure will bring with it a very heavy price, because although the responsibility rests with every MP, the electorate will see it as the Government’s fault.

A revised estimate – the financial settlement with the EU

Since we published Anthony Scholefield’s Futurus Briefing paper on the financial settlement with the EU, the author has undertaken some further research which has resulted in a revision to the original document. The revised version can be downloaded here.

It should be pointed out that the headline figures, suggesting that the EU owes us a refund, have not been revised, but  extra background information, such as our realistic future pension liabilities, has been added.

Best be leaving now

The European Commission has launched a public consultation to gather views of the broader public on setting up a European Labour Authority and the introduction of a European Social Security Number.

The European Labour Authority should ensure that EU rules on labour mobility are enforced in a fair, simple and effective way. Concretely, building on existing structures, the Authority would support national administrations, businesses, and mobile workers by strengthening cooperation at EU level on matters such as cross-border mobility and social security coordination. It would also improve access to information for public authorities and mobile workers and enhance transparency regarding their rights and obligations.

The European Social Security Number (ESSN) aims at simplifying and modernising citizens’ interaction with administrations in a range of policy areas. An EU Social Security Number would facilitate the identification of persons across borders for the purposes of social security coordination and allow the quick and accurate verification of their social security insurance status. It would facilitate administrative procedures for citizens by optimising the use of digital tools”.

Both initiatives were announced by President Juncker in his 2017 State of the Union address. Legislative proposals for both initiatives are announced in the European Commission’s Work Programme for 2018 and planned to be tabled by spring 2018.

There are two ways to look at this. This could be viewed as the EU steaming ahead to do all that which it could not do with the UK as a member, much like PESCO. The other way to look at it is that this was always the direction of travel. UK membership only really governs the pace of integration and a “public consultation” means they are going to do it regardless of what anyone thinks.

Either way, this is not the domain of a mere trade bloc. This is an instrument of an emerging supreme government, to which the UK would otherwise be subordinate. It is the foundation of Juncker’s “Social Europe” meaning that social and welfare policy will gradually drift toward Brussels and far out of the reach of democracy. Of course, this would follow that much vaunted Brussels subsidiarity principle. You are free to have any have any policy you like, just so long as it stays within the parameters defined by the Commission and the ECJ.

And this is the thing with the EU. Once consent is established for the basic foundation, the ossification process begins to the point where you no longer have the power, reform is impossible and like trade and agriculture, it simply drops out of public discourse. Why debate that which cannot be influenced? This is how we drift from democracy to technocracy – and subsequently stagnation and disaffection. That is why I would vote to leave every single time.

EU finally comes clean on future UK-EU military objectives, but risks remain

By David Banks. This piece first appeared on the Veterans for Britain website and is reproduced with permission.

In a speech in Berlin today, Michel Barnier (the EU’s Brexit negotiator) for the first time explicitly spells out some interpretations over future UK-EU military relations under Permanent Structured Cooperation (PESCO), the new EU policy ambition in this field.  The text can be found here.

Some of these comments are welcome. In particular, in saying “Any voluntary participation of the United Kingdom in European defence will confer rights and obligations in proportion to the level of this participation,” Mr Barnier is indicating that UK participation on an ad hoc basis in missions can generate corresponding engagement at the political level. Clarity is needed on this point, but it does seem that the approach is heading towards a flexible structure rather than seeking to tie the UK down in fixed EU treaty obligations.

Again, Mr Barnier acknowledges that there are several existing models of cooperation and not just the Norway one, a model which is tied into membership of the Single Market. That requirement appears to have been dropped by the Commission. More widely, this may even be the first admission that a special FTA deal is achievable, since several such models do already exist lying between WTO Status and EEA membership.

However, there are also clear remaining issues. While UK membership of the European Defence Agency is ruled out, some sort of structured affiliation is not. Yet the EDA is core to future EU defence integration and formal UK adhesion beyond observer status carries budgetary obligations and political risks.

Also, the EU recognises the UK will continue to play a bilateral and multilateral role, especially through NATO. But PESCO has identified non-NATO multilaterals as targets to come increasingly under the PESCO banner. We also note the cheeky attempt to appropriate the St Mâlo agreement at the very end. The EU has wide eyes and a big appetite in agreements that are not part of the menu.

Tellingly, Barnier is tacitly admitting, in saying that “The British have never wanted to turn the Union into a military power”, that the EU now seeks to do just that.

Major-General Julian Thompson, chairman of Veterans for Britain, said:

“M. Barnier offers a backhanded compliment to the importance of the UK to European Defence – a term which of course is not the same thing as the EU’s precocious military appetite.

“It is not in the UK’s interest to institutionally weld itself to this ‘Security ERM’. Post Brexit, the UK should cooperate in missions and projects of clear joint interest. It is a positive sign that the Commission’s chief Brexit negotiator recognises this prospect.”

Colonel Richard Kemp also of Veterans for Britain said:

“EU defence integration clearly remains a threat to NATO, and to UK multilateralism inside Europe but outside the EU. EU ambitions are extensive and dangerous.”

Referring to the outrageous opening inference of the Brexit vote as a betrayal of the fight against terror, Col Kemp added:

“This is an insult to the electorate of the first order. But then, the European Commission has never understood either democracy or adverse votes.

“The EU has brought a lot of its terror-related problems on itself. In contrast, the UK has been the most capable in defence and security and has been the bulwark of anti-terrorism in Europe.”

Photo by DVIDSHUB

Deal or no deal? Some thoughts on last week’s meeting

Last week I, along with about 90 other people, attended a conference entitled Deal or no deal – what are the options? hosted by David Campbell Bannerman MEP.  I was very much hoping to hear something of the government’s current thinking about the progress of the Brexit negotiations with the EU.

The opening speaker, Rt Hon Greg Hands MP, gave a very upbeat assessment of our trading opportunities post-Brexit. His department, he assured us, is ready, come what may. Nine new trade commissioners are to be appointed and our new tariff schedules are being prepared for the World Trade Organisation. At a time when protectionism is on the increase, there is considerable enthusiasm in some quarters (which he did not name) for a new independent UK to re-emerge as a champion of global free trade. He was adamant that all the major countries with whom the EU had signed trade deals were keen to continue a similar arrangement with us on Brexit.

One member of the audience expressed concern about how high standards in agriculture could be maintained if trade was to become freer. Mr Hands insisted that there would be no lowering of standards on food quality and we would not be flooded with poor-quality imports (Presumably a reference to chlorine-washed chickens about which there are currently many worries)

David Campbell Bannerman then introduced what he called the “Super Canada” option which, he claimed, was the Government’s  preferred option. This was no surprise, given that a few days beforehand, the EU was widely reported as considering a deal along the lines of CETA, the EU/Canada deal, with the UK. This has been strongly criticised both by the left and by other informed commentators for its inadequacy. Mr Bannerman said that the EU likes the CETA deal and intends to use it as a template for future trade deals with Australia and New Zealand too, Twelve of the 30 chapters in this deal would need no change, he informed us. The others would not be suitable without re-writing, as we would (presumably) wish to protect the NHS  The EU is worried about the future UK attitude towards regulation, as it doesn’t want to see us becoming the Singapore of the North Atlantic, an option enthusiastically supported by, among others, Owen Paterson, whose piece appeared, perhaps coincidentally, on the same day as this conference.

David Davis gave the keynote speech. He stated that he does not want to end up with no deal and is confident that we will get a deal. He pointed out the areas where progress had been made and insisted that our exit will be conducted in a smooth, orderly way.

There was, nonetheless, a possibility that we may not get a deal, but Whitehall was preparing for every eventuality.

Mrs May has consistently rejected using Norway as a model and Helle Hagenau, a familiar face to our more long-standing members, explained some of the pitfalls. Although advising against our staying in the EEA, however, she felt it was worth our re-joining EFTA as we needed some trading arrangement with the four EFTA countries once we leave. Switzerland is our sixth most important trading partner while bilateral trade with Norway  was worth £18.57 billion in 2015. She did, however, mention that although EFTA courts are not bound to implement the ECJ rulings, , they were in fact doing so, even though the ECJ has no direct power to intervene in EEA matters and the actions of the EFTA court was an encroachment on the original basis of the EEA agreement.  With the alleged indivisibility of the “Four freedoms” of the Single Market mentioned on a couple of occasions during the morning, I was surprised that no one mentioned Liechtenstein’s unilateral restriction on free movement of people at this point.

The final speaker was Rt Hon David Jones, who had formerly worked as a minister in DExEU (the Department for Exiting the European Union)  who informed the meeting that any role for the ECJ in our affairs post-Brexit would be totally unacceptable to him and a number of his colleagues. If this meant we would leave with no deal, then as far as he was concerned, so be it.

Interestingly, little was said about the details of any transitional arrangement, which as we have pointed out, the EU is only prepared to offer us under terms which would see us still under the thumb of the ECJ. We can therefore presume that Mr Jones and a number of his colleagues will be  equally opposed to any such arrangement.

Although only billed as a “comment” rather than a speech, the few words shared by Hans-Olaf Henkel of the BDI, the German equivalent of our CBI, were well received. Although he regretted our vote to leave the EU and still hoped Brexit wouldn’t happen,  he was most unimpressed with the way the EU was handling the negotiations. He referred in particular to the “divorce bill” which  he regarded as unacceptable. He also said that Brexit was the fault of Brussels, although his statement that “you joined an EU of sovereign nations and suddenly someone decided to make a United States of Europe out of it” was a rather naive comment given the United States of Europe was always the destination of the European project, right from the days of Jean Monnet.

It was good to meet up with a number of colleagues from other campaign organisations, quite a few of whom I had not seen since the referendum.  It was worth attending this meeting, although I came away with a clear sense that not everyone in the government is singing from the same songsheet, so perhaps the lack of a clear Brexit strategy is understandable given the balancing act required to avoid a massive rebellion on the back benches.

Among the other attendees was Viscount Matt Ridley, whose rather witty comments on the conference may be of interest. They can be found here.