Mrs May and David Davis misunderstand the EU and the EEA

Knowledge is power, so it is very worrying when  our senior politicians repeatedly display – through obvious errors and factually incorrect statements – a lack of understanding of the European Union (EU) and how it functions. These errors must inevitably undermine any chance of negotiating a satisfactory outcome for the United Kingdom and time is running out.

For example, Mrs May in her Our Future Partnership speech at the Mansion House on 2nd March 2018 said:

For example, the Norway model, where we would stay in the single market, would mean having to implement new EU legislation automatically and in its entirety – and would also mean continued free movement.

Norway participates in the European Economic Area (EEA) through membership of the European Free Trade Association (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 anyway, meaning that even if we left the single market, the UK would still need to abide by them for global trade unless we decided to leave the World Trade Organisation (WTO) as well.  Various members of EFTA  have unilaterally invoked Article 112 (the Safeguard Measures) of the EEA Agreement to restrict free movement. In the case of Liechtenstein, it was free movement of people  whereas for Iceland it was free movement of capital. The UK could do the same if retains membership of the EEA by re-joining EFTA. The “four freedoms” are NOT indivisble for non-EU countries, whatever  M. Barnier may say.  Ironically Articles 112 and 113, which Mrs May fails to understand and rejects, are reproduced closely by the EU in their draft Withdrawal Agreement, Article 13, allowing the EU unilaterally to restrict freedom of movement including immigration into the EU from the UK.

Mr Davis’ understanding of the EU’s modus operandi is no better, For example, Mr Davis, in his Foundations of the Future Economic Partnership Speech in Vienna 20th February 2018 said:

The European Union itself has a number of mutual recognition agreements with a variety of countries from Switzerland to Canada to South Korea. These cover a huge array of products — toys, automotives, electronics, medical devices — and many many more. A crucial part of any such agreement is the ability for both sides to trust each other’s regulations and the institutions that enforce them. With a robust and independent arbitration mechanism. Such mutual recognition will naturally require close, even-handed cooperation between these authorities and a common set of principles to guide them.

He appears unaware of the EU’s overall longstanding approach for the said huge array of products and didn’t quote any examples of regulations, institutions and authorities where his ideas are actually working.  So there is a bit of guesswork here as to what he intended and how well this fits in with the EU’s position, what is enshrined in EU law, and consequently how likely his (and Mrs May’s) new panacea for ‘frictionless’ trade (mutual recognition of standards) is to be realised.

The EU’s direction of travel (for the Single Market), by contrast with Mrs May’s and Mr Davis’s speeches, is towards harmonised standards, regulations, and enforcement or surveillance through a top-down centralised legalistic and bureaucratic framework. It is also a long established, publicly stated ambition that ‘third’ countries (outside the EU, or wider European Economic Area, EEA) should 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, 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 9 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 has also recently spelt out its position, which is consistent with its New Approach Directives, in Notice to stakeholders withdrawal of the United Kingdom and EU rules in the field of industrial products.  The adverse effect of Mrs May’s Brexit on a frequently essential part of this product jigsaw (the work of Notified Bodies for conformity assessment of products) is explained here.

The EU would seem to prefer an orderly Brexit, judging by its website, although it appears to have realised that even a smooth Brexit will be highly disorderly for many organisations with the UK reverting to “third country” status. A seamless Brexit is looking increasingly unlikely as our government’s failure to grasp the rigidity of the EU’s position has left it  in denial of the consequences for trade.  After many years of ceding powers to Brussels, we have ended up with a Prime Minister and chief negotiator who are completely out of their depth, while the Department for (not) Exiting the European Union lacks essential competence.  It is instructive to look at what serious items are missing from Mrs May and Mr Davis’s speeches rather than what is said which is often largely a collection of wishful thinking, anecdotes, regurgitated vacuous clichés and irrelevant boiler-plating.

The serious items that should feature include: an outline of how the EU is understood to manage trade (useful background); full specifics on what exactly ‘frictionless’ trade means quoting specific examples – named products, commercial activities and enterprises; the barriers that will exist (taking cognisance of EU requirements, such as here); how in practice these will addressed in ways acceptable to existing EU ways of working (in other words, how, when necessary, will we still be compliant with EU laws, regulatory practices and organisational frameworks); cost breakdowns; how payment for extra costs incurred will be addressed; a planned timetable; risk analyses and management arrangements; outlines of work to date including feasibility studies and assumptions; measures for functional integration across interfaces; signposts to further work and information.  Interfaces tend to cause problems and successful integration between, for example, different countries, standards, organisations, market surveillance practices, etc. would need particular practical attention.

If we are to see a seamless departure from the EU – and indeed, until we have the necessary expertise, it is logical to seek a stopgap, time-limited arrangement which will retain near ‘frictionless’ access for trade whilst ensuring that we truly exit the political structures of the EU on 29th March 2019 and largely cease to contribute to its politically motivated budget.  Remaining within the EEA via re-joining EFTA is the only viable option. To date we have not received an explanation from Mrs May why she rejected this route nor why she has shown no interest in using the flexibility in the EEA agreement to get a bespoke deal.  Her incorrect statement in her speech (quoted above) is nowhere near an explanation.

In contrast to a practical and relatively straightforward temporary solution to buy time, we hear instead a great deal of waffle about a long-term Free Trade Agreement (FTA) like no other.  Mrs May, Mr Davis et al are set on maintaining ‘frictionless’ trade by pressurising the EU to bend its existing rules (primarily incorporated into EU Laws and European Court of Justice, ECJ judgments), alter its longstanding direction of travel and at the same time pay all the extra costs (to the EU) of such a deal.  This arrangement is one which the EU can, and most likely will, refuse.

Photo by aronbaker2

Brexit means Brexit (in name only)

Politicians, civil servants and Eurocrats, economical with the truth as ever, if not actually disingenuous, are doing their best to create a Brexit in name only.  Mrs May, Mr Davis and the Department for (not) Exiting the European Union (EU) are carrying on regardless. They appear oblivious to the contradictions in what they are saying and doing, and the obvious warning signs from Brussels.  The following merely illustrates the tip of a delusional, ill-informed myopia.

Mrs May in an interview broadcast on 2nd February 2018 on Channel Four said:

“ …..we have until March 2019, that is when we are leaving the European Union. 

… What we are going to be negotiating with the European Union is a free trade agreement with them that will be about a tariff free, a frictionless trading as possible. …..That’s the sort of deal I’m going to be negotiating……What we will have in future and that is what the next few months negotiating is about is a bespoke free trade agreement.”

The EU sees things somewhat differently and has remained consistent in its approach, although as time passes it appears to be getting increasingly uncompromising and demanding.  Its top priorities are the preservation of its own interests and obedience to its rules rather than accommodating the wayward United Kingdom. This is very apparent in recent report and their published text and slides on the EU’s view of the transitional period.

Mr Barnier (the EU’s chief negotiator) on his recent trip to London, repeating previous comments (for example), said:

“The only thing I can say – without the customs union, outside the single market – barriers to trade and goods and services are unavoidable.”

An all-singing, all-dancing free trade agreement is not likely to be the long term solution even if it can be negotiated. Furthermore, negotiations on such a deal can only start after the UK has formally left the EU, that is, after 29th March 2019 or later, as confirmed the EU’s Trade Commissioner back in 2016. The EU’s perspective on a free trade agreement with the UK is roughly on the lines of  ‘OK if it is a win for us and a lose for you’.  The Irish Times has recently been reporting on what the EU is up to, such as hamstringing our businesses and government, and retaining the right through the Common Fisheries Policy to plunder our Exclusive Economic Zone (i.e., the waters up to 200 nautical miles from the shoreline. or the median point where the sea is less than 400 nautical miles wide).  The EU’s demands go far beyond what is strictly necessary for trade.

Unbelievably Mrs May is likely to agree to this and much more. Time is not on her side. Also the unbreakable law of negotiations is against her as well – in other words, ‘money and concessions flow from the weakest (or more desperate) to the strongest party’.  The transition cave-in (aka agreement to avoid a ‘cliff-edge’ of barriers to trade) effectively turns the UK into a powerless EU vassal state as explained here and here (where vassal status becomes permanent without a free trade agreement).  It looks like this could actually be less awful than the terms eventually on offer for an unfree trade agreement from an omnipotent EU to a subservient Mrs May-led UK.  Germany, in the form of Mrs Merkel, is already making disparaging jokes in semi-private about Mrs May.

That a domestically weak Mrs Merkel can lampoon our supposed ‘negotiating dreadnought’ points to an uncompromising EU/German-centric position.  And what Germany wants from the EU, Germany gets.  After all, the EU is a political construct which was designed to tame German nationalism, whilst facilitating its industrial, commercial and demographic clout, and at the same time giving France delusions of grandeur. Economic objectives are subordinate, not dominant to political objectives.  In considering a free trade agreement there should be no underestimating the EU’s continuing priorities of control-freak centralisation (under German hegemony), homogeneity and undermining national identities.  It is unlikely Mrs Merkel (or her eventual successors) will treat the UK kindly as this could encourage other Member States to rebel.

Yet the prospect of the UK becoming a permanent, powerless EU vassal state by indefinitely extending the transitional arrangement or by signing a one-sided free trade agreement is basically thanks to Mrs May’s dithering.  Although presumably Mr Davis and the Department for (not) Exiting the European Union had some input. Mrs May, for reasons never explained, decided that we must leave the Single Market (and by extension the European Economic Area, EEA). Remaining in the EEA by rejoining EFTA, the European Free Trade Association, is a much better proposition as a temporary or transitional measure. It would allow fairly frictionless trade and a breathing space in which to negotiate a suitable long-term trading relationship without being under duress.

The EFTA/EEA option allows for control of immigration through unilaterally invoking Article 112 (the Safeguard Measures) of the EEA Agreement.  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). The EEA Acquis or body of law is about a quarter of the total EU Acquis since it only relates to successful functioning of the EEA. And EFTA members make their own trade agreements with other countries.  Membership of the EEA solves the problem of maintaining a soft border in Ireland between the Irish Republic and Northern Ireland. It also gives us full control of fishing.

When Mrs May first rejected remaining in the Single Market, in her Lancaster House speech in January 2017 she appears to have been unaware of the EFTA/EEA route and its possibilities. Unfortunately, she does appear both then and in her later Florence speech of 22nd September 2017, to have swallowed ‘hook, line and sinker’ the disingenuous line repeatedly peddled by the EU leaders about the four freedoms (of movement of goods, capital, services and people) being inviolable – they certainly are if you are a Member State of the EU but not for EFTA countries who can unilaterally invoke Article 112 of the EEA Agreement.

EU leaders and Mr Barnier in particular appear to have been both unhelpful and economical with the truth about the EFTA/EEA route. However, recently it appears the European Commission may be seriously evaluating the EFTA/EEA route for transitional arrangements for the UK as noted by an EFTA Court judge (Mr Carl Baudenbacher) giving evidence to the Commons Committee for Exiting the EU on 7th February 2018 and reported in the Telegraph on-line. It would be very ironic if it was the EU which finally pushed Mrs May into signing up even temporarily to a better proposition – i.e., EFTA/EEA membership –  than the one she is currently minded to pursue.

We can but hope that common sense will prevail for if not, no amount of spin will be able to conceal the truth about Mrs May’s submissive transition to an unfree trade agreement. There will obviously be a heavy political price to be paid in the next General Election in 2022 for short- changing the British people over Brexit through turning this country into a permanent EU Vassal State.

Transition will eradicate British fishing Industry

Press release from Fishing for Leave
  • Fishermen’s Organistation Fishing for Leave say it is now unequivocal fact that the “Transition” means we will be trapped obeying all EU law including the disastrous Common Fisheries Policy (CFP) as some sort of vassal state
  • FFL cite EU could trap UK in protracted legal claims for ‘continuity of rights’. Continued CFP is existential threat to what is left of the British fishing industry and coastal communities.
  • Group claims EU will have little charity as the UK will be locked into “legal purgatory” in the CFP where EU could cull UK fleet and claim ‘surplus’ UK hasn’t capacity to catch.
  • FFL implore government and MP’s to refuse the “transition” terms and to exempt fisheries from them

Fishermen’s organization Fishing for Leave say the proposed “transition” is a grave constitutional danger and an “existential threat” to the survival of Britain’s fishing industry and coastal communities.

The group say it is now clear that the “transition”, which they have been warning for months, would give the UK a Brexit in name only. In a position of neither remaining as a member, as Article 50 terminates the UKs current membership on the 29th of March 2019, nor leaving as the terms of the transition say the UK must obey the entire Acquis (all EU law -old and new) including the disastrous Common Fisheries Policy (CFP).

**NOTES
The EU clearly stated their terms as announced on 29th of January;

12. any transitional arrangements…. should cover the whole of the Union Acquis…Any changes to the Acquis should automatically apply to and in the United Kingdom during the transition period.

17. The UK will no longer participate in or nominate or elect members of the Union institutions, nor participate in the decision-making or the governance of the Union bodies, offices and agencies.

20. Specific consultations should also be foreseen with regard to for the fixing of fishing opportunities during the transition period, in full respect of the Union acquis.

CLAUSE 12 & 20 CLEARLY SAYS WE WILL STILL HAVE TO RESPECT THE ACQUIS (i.e. THE CFP). CLAUSE 17 SAYS WE’LL HAVE NO SAY OR RECOURSE

Veteran Campaigner John Ashworth said
“Our primary concerns  is ‘Continuity of Rights’ under treaty law. We have always been concerned that adoption of all EU law onto the UK statute book could allow the EU to cite that rights acquired under the Acquis should continue to apply – the EU has stated this since its parliamentary briefing notes on Brexit in February 2016”.

“A “transition” period compounds this danger. As it is part of the deal after we leave the EU under Article 50 and it will have to be underwritten by a new ‘transition’ treaty between the two parties. Under the terms of the treaty the UK will have agreed to re-obey the entire Acquis after we terminate our current membership”

“As we will either not terminate the new ‘transition’ treaty nor have a clearly defined Article 50 get out  clause where “the treaties cease to apply”, then Article 70 of the Vienna Convention says “unless the treaty otherwise provides…..the termination of a treaty does not affect any rights, obligations or legal situations created through the treaty”..

“In addition to this Article 30 of the Vienna Convention provides that if a previous and latter treaty are not incompatible, and that the old treaty is not terminated then the rights of that treaty will still apply.”

“We will have created a continuity of rights by adopting all EU law and then agreeing to obey it as per the terms of a transition treaty. The EU could then argue for this in protracted litigation that would bind us into the CFP and hamstring the UK for years to come”.   

                                                                                                                                                                                     
Existential Threat to the Fishing Industry
Alan Hastings of FFL continued;
“If we fail to break free from the CFP the EU will be free to implement policy changes to our detriment. We doubt the EU27 would feel charitable to their political prisoner who has no representation but abundant fishing waters”.

The group say that the ill-conceived EU quota system and discard ban is the existential threat that could be used to finish what’s left of our Britain’s fishing fleet allowing the EU to claim the ‘surplus’ that Britain would no longer have the capacity to catch.

Alan highlighted;
“Rather than address the cause of discards – quotas, the EU has banned the symptoms – discards.

Now when a vessel exhausts its lowest quota it must cease fishing. ‘Choke species’ will see vessels tied up early and, according to official government Seafish statistics, 60% of the fleet will go bankrupt”.

If a sizeable portion of the UK fleet is lost international law under UNCLOS Article 62.2 which says;  ‘Where a coastal State does not have the capacity to harvest the entire allowable catch, it shall… give other States access to the ‘surplus’.”

Fishing for Leave warns that between the EU having the opportunity to claim “continuity of rights” even if proved wrong they could drag out Britain being trapped in the CFP and its quota system and discard ban for enough time to fishing our fleet off.

Alan concluded;
Once we have lost our industry there is no way back from this Catch 22– if we do not have the fleet we cannot catch the “surplus” and if we do not have the “surplus” we cannot maintain a fleet. With this we will also lose a generation and their skills which are irretrievable.

The UK political establishment of all hues would not be forgiven for betraying coastal communities a second time.

“A transition destroys the opportunity of repatriating all Britain’s waters and resources worth between £6-8bn annually to national control. This would allow bespoke, environmentally fit-for-purpose UK policy that would benefit all fishermen to help rejuvenate our coastal communities”.

“As Minister, Eustice promised we could rebalance the shares of resources where we, have the EU fleet catching 60% of the fish in our waters but receive only 25% of the Total Allowable Catches even though we have 50% of the waters”

“This transition is the reverse of this and something exceptional that is within touching distance and what the public in constituencies across our land expect to see on this totemic and evocative issue”.

“The government and MPs must refuse the “transition” terms and exempt fisheries from them or we will consign another British industry to museum and memory.

“That Theresa May has known this all along means she, and her remain minded officials, are fully complicit in the embryonic stages of a second betrayal and sell out of Britain’s fishing industry”.

NOTE ON PM’s comments

For too long people have bought the government rhetoric. The PM and Ministers have repeated; “We will be leaving the Common Fisheries Policy on March 29, 2019”.

This spin has never been a commitment nor indication of a clean Brexit for fisheries. Those who kept citing these words have been either mendacious or naive to the reality of a Transition.

The government has known all along what the transition meant. The PM always continues, that;
“Leaving the CFP and leaving the CAP” wouldn’t give the opportunity until post that implementation (transition) period – to actually introduce arrangements that work for the United Kingdom. The arrangement that pertains to fisheries during that implementation period will, of course, be part of the negotiations for that implementation period”.

We may officially “leave” the CFP on 29th March 2019 but we’ll re-obey entire EU Acquis as part of the “transition” period after Article 50 officially terminates the UKs membership – we will have left in name only.

Transition to a permanent EU vassal state?

Unless the proposed transitional deal is blown out of the water, the United Kingdom appears to be moving inexorably towards being a permanent European Union  Vassal State. Recent speeches and other statements by Mrs May and Mr Davis point strongly to this being the most likely outcome from their handling of the Brexit (or Article 50) negotiations.  All looks good on the surface, but they do not understand how the EU works and some worrying facts emerge when you analyse what they did and did not say. .

Mr Davis, reiterating Mrs May’s decision to leave the Single Market, in his Teesport Speech of the 26th January 2018  said:

“While the aim of the implementation period is to provide certainty and continuity, we must keep sight of the fact that this is a bridge to a new future partnership.

Where, crucially, the United Kingdom is outside of the single market, and outside of the customs union.”

He then went on to say:

“We want a good Brexit for business and a good Brexit for the British people and we will deliver that on a frictionless access to the Single Market and a freedom political and an economic freedom for the future.”

Clearly there is a contradiction here – it is not possible to have frictionless access whilst being outside the Single Market (or the European Economic Area, EEA) and being a ‘third country’. Michel Barnier, the EU’s chief negotiator, has pointed this out on several occasions. For example, he said:

“A trade relationship with a country that does not belong to the European Union obviously involves frictions.”

Frictionless trade between members of the Single Market (and European Economic Area, EEA) occurs because of a common set of rules, regulations, processes or procedures, enforcement and overall EU surveillance. 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 measures manage risks involved with ‘imports’ and sometimes are protectionist in nature.

The transition period (aka implementation period) clearly places this country into the status of a powerless EU Vassal State for 21 months after 29th March 2019 as explained here. However, if agreement on frictionless trade cannot be agreed during this period – which seems a certainty given Mr Barnier’s often repeated comments and how the EU normally treats ‘third countries’ – it will need to be extended potentially indefinitely.

Mrs May’s Davos speech on 25th January 2018 to the World Economic Forum provided the perfect audience to sell the opportunities presented by Brexit.  She could have outlined her vision, complete with objectives, timetable, planning and progress, in order to encourage her audience to invest here.  She could have addressed the principal concerns of business, for example, about market size and frictionless access to the EEA. She could have described (with specific detail) her vision for a ‘new, deep and special partnership’ with the EU which would have clarified and developed her Florence speech of 22nd September 2017.  Instead of which she focussed on artificial intelligence and making the Internet safer –  presumably her highest priorities.  Any business or political leader present, listening to and reflecting on the content could be forgiven for concluding that the UK government has nothing to offer, having already ceded control of Brexit negotiations to the EU and thus, any meaningful Brexit is not going to occur.

Artificial intelligence then is a very poor substitute for Brexit failure and even here Mrs May cannot easily offer unique government-supported opportunities for funding research and development nor can she use public sector procurement to facilitate innovation.  She can’t even protect the public sector from future Carillion fiascos. EU directives (laws) and gold-plating by her civil servants will interfere.

The transition proposals so far on offer from the EU (as explained here) are far worse than the alternative of remaining within the EEA through re-joining The European Free Trade Association (EFTA).   It is likely that the eventual transition deal (if it actually happens given  it is dependent upon Mrs May s accepting the EU’s outstanding Phase 1 conditions), will be even more onerous upon this country than already proposed.  The EU’s stance on transitional arrangements, manifested recently by the Annex to the Council Decision of 22nd May 2017 and published 29th January 2018, appears to be getting more uncompromising.  If accepted, Mrs May is likely to be forced into making further large payments into the EU’s budget, accepting continued freedom of movement of persons, taking on additional financial liabilities, remaining subject to the EU’s European Court of Justice (ECJ) and to the Common Fisheries Policy, transferring further responsibilities to the European Commission (typically defence and defence procurement, along with regulation of financial services), following the complete EU Acquis or body of existing and future law, and giving extra rights to EU citizens living here, etc..  Meanwhile, the UK will be prevented from negotiating free trade agreements around the world whilst being excluded from existing ones negotiated by the EU.

It was Mrs May’s decision to reject the EFTA/EEA option, even as a temporary measure. She first made this clear in her Lancaster House speech in January 2017.  The EFTA/EEA option allows for control of immigration through unilaterally invoking Article 112 (the Safeguard Measures) of the EEA Agreement.  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). The EEA Acquis or body of law is about a quarter of the total EU Acquis since it only relates to successful functioning of the EEA. In other words, the EEA component of the Acquis is only about trade and not political integration. Furthermore, EFTA members make their own trade agreements with other countries.  Membership of the EEA solves the problem of maintaining a soft border in Ireland between the Irish Republic and Northern Ireland.  The EFTA/EEA option was claimed to be the best choice for a Brexit economy in a recently leaked overly pessimistic draft government report EU Exit Analysis – Cross Whitehall Briefing.

Unfortunately it appears that both Mrs May and Mr Davis are well and truly out of their depth.  The Department for (not) Exiting the European Union also seem to be lacking in essential competence, and is in line to face the blame for failings in getting a successful Brexit. At best, everyone is following a political Brexit whilst ignoring practicalities.  At some stage the number of Conservative MPs who will realise that the dire situation this country is facing is of their own government’s making will reach a critical mass.  At this point, there will either be an almighty rumpus following which some quite senior heads are likely to roll or else if the government persists on its stubborn course, the electorate will punish the Conservative Party severely in the next General Election in 2022 for short-changing the British people over Brexit through their acquiescence in turning this country into a permanent EU Vassal State.

Lord David Owen: Here’s how to stop the EU yelling “heel” and prosper after Brexit

This piece first appeared in the Sunday Times and was also posted on Lord Owen’s personal website. It is used with full permission of the author.

A vital Brexit issue will have to be resolved in the next six to eight weeks. Are we to be thrust into political limbo after leaving the European Union next year or will we assert democratic control through parliament, a core reason for many voting to leave the EU?

The guidelines from the other 27 EU heads of government, published last month, called for any transitional arrangement between the UK leaving the EU on March 29, 2019 and the end of December 2020 to be “clearly defined and precisely limited in time”. It went on to say any EU legislation would have to apply to the UK under the competence of the European Court of Justice (ECJ), and that the UK would participate in the customs union and the single market.

We have already seen the peremptory way the EU-UK agreement document published in phase one of the negotiations was brushed aside a fortnight ago, when a Brussels source spoke bluntly: “The deal in December did specify March 2019 for [ending] free movement rights. That was then.” Now free movement extends throughout the transition. The European parliament’s Brexit co-ordinator says “it will be whole acquis [the term for the EU’s body of laws] and nothing else”. He says MEPs would accept a longer transition from 21 months up to 36 months.

What all this demonstrates is that, under article 50, the EU negotiators see themselves as prisoners to agreement from any of the 27 member states. Donald Tusk, president of the European Council, made this crystal clear over Ireland. Now objections from former east European countries have moved the goalposts to the UK’s detriment. We are on notice that the next problem will be Gibraltar. This pattern will continue in other areas until we have more leverage in negotiations. The UK has already shaken hands on shelling out billions of pounds during the transition and we talk in parliament of no taxation without representation. Yet that is exactly what we are going to see more of during our period in limbo with no vote.

The think tank Open Europe, an objective commentator, puts the figure at approaching €60bn. As a Brexiteer, I fully accept that the UK would make payments to the EU budget during our transition, as all non-EU members of the European Economic Area (EEA) already do. However, like Norway, we would make extra payments if there were a successful free trade agreement. Lord Kerr, who as a diplomat designed article 50, told the House of Lords: “We will come to heel in the end, probably quite quickly, because it is very important to avoid the cliff edge next year. We will not avoid it, but we will postpone it.” That sums it all up. This government is coming to heel and we had better realise it now.

We could effectively avoid both these cliff edges — an agreement on leaving the EU and on free trade — if the European Council’s guidelines for the “political limbo” period allowed for the UK to participate inside the single market as a non-EU member of the EEA. For the past 18 months, I have quietly tried to
convince the prime minister that this is the best existing democratic framework for us to be within for the transition period. It does not mean exercising the same powers as are open to the other three members — Norway, Iceland and Liechtenstein — and we would be accepting the European Council’s demand for an absolutist status quo standstill, but we would not be in limbo.

We would have automatic EEA consultation rights on EU legislation and would not be under the ECJ, but the EEA-Efta (European Free Trade Association) court and the EEA governance pillar. Professor Carl Baudenbacher, a judge of the Efta court, giving evidence in the Lords, indicated that the EEA/Efta option for the UK’s transition period is feasible, even given the short timescale.

I have no doubt whatever that a transition predominantly via the EEA would, quite manifestly, be better for all concerned. A domestic advantage is it would curb any legal action over the EEA agreement that might be in prospect. A court case in November 2016 claimed that the UK had a legal right to remain in the EEA, despite ceasing to be a member of the EU, until parliament voted otherwise. This was not accepted by the High Court, which ruled that the case was being brought too early for it to adjudicate. If the UK government does not give the year’s statutory notice of leaving the EEA in March, and relies on automatic exit in March 2019, we could see the lawfulness of the government’s conduct being challenged in UK courts.

Despite constant warnings, the government has hidden behind a longstanding diverence of interpretation on whether, on leaving the EU, a country ceases to be a contracting party to the EEA agreement. The fact is the UK government— not the EU — signed the relevant documents to enter the agreement. A government that was serious about negotiations and acquiring more leverage would have no hesitation at all in testing this case as a matter of international law by the Vienna convention and where the ECJ is not the final authority. Nevertheless, that is history. Now if the EU-UK withdrawal agreement contained a few technical amendments, the UK could set aside all legal arguments by staying in the EEA during the transition period.

The details will soon emerge where it will be clear that the EU accepts the EEA agreement continues to apply during the limbo period but the UK is not allowed to participate. The EEA option I am arguing for — for the duration of the transition only — is a mixture of bespoke and off-the-shelf. It cannot become a
permanent mechanism for leaving the EU, as many Brexiteers feared might happen. It is being advocated as a good-faith response to the European Council’s guidelines. It would help fill in the detail of how the UK government will approach the transition to achieve its aim of a bold and ambitious free trade agreement. Having the greatest possible tarie and barrier-free trade with our neighbours is an achievable ambition, as well as negotiating our own trade agreements around the world on leaving the EEA.

Few want a hard Brexit, but to avoid it the UK needs to put forward a reasoned democratic arrangement for handling the transition. Any proposed limbo status is unacceptable. The UK should insist on full participation and full rights under this agreement, including, subject to the consent of its non-EU parties, the ability to participate in its EEA-Efta governance pillar, free of direct ECJ and European Commission supervision. For EU members, an EEA transition follows precedent in using existing democratic machinery and treaties. It could hopefully unite all shades of “leave” opinion, and attract some former remainers who are vocal over continuing in the single market outside the EU for the transition. It is high time we came closer together in parliament as we embark on this national endeavour.

Lord Owen was the Labour foreign secretary from 1977 to 1979 and later led the Social Democratic Party

Fishing for Leave’s comments on the proposed transitional arrangements

Below is the EUs recommendations for the transition. Those with the particular detrimental implications for the United Kingdoms trade are Clause 14 and 15 as amended by the Council. Indeed, the implications defeat the whole point of HM Governments raison-d’etre for a transition.

TRADE

14. During the transition period, and in line with the European Council guidelines of 29 April 2017, the United Kingdom will remain bound by the obligations stemming 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; while the United Kingdom should however no longer participate in any bodies set up by those agreements.

The Council replaced the words ‘will no longer benefit from’ with ‘will remain bound by the obligations stemming from’. It also deleted the words Where it is in the interest of the Union, the Union may consider whether and how arrangements can be agreed that would maintain the effects of the agreements as regards the United Kingdom during the transition period’.

The intention seems to be that the UK will still have obligations to the EU to apply agreements concluded with non-EU countries by the EU (or the EU jointly with its Member States).

However, since the withdrawal agreement cannot bind non-EU countries, those non-EU countries will no longer have obligations to the UK as the UK will no longer be an official member of the EU but merely maintaining regulatory alignment.

The UK would only be able to be recognised within such agreements if other non-Eu countries agree to continuing existing obligations in force.

The negotiation of treaties between the UK and non-EU countries is the subject of the next paragraph which seemingly makes that an impossible contradiction. 

15. In line with the European Council guidelines of 15 December 2017, any transitional arrangements require the United Kingdom’s continued participation in the Customs Union and the Single Market (with all four freedoms) during the transition. The United Kingdom should take all necessary measures to preserve the integrity of the Single Market and of the Customs Union. (full regulatory alignment is the only way to do so and this complies with Clause 49 of Phase 1 regards UK vs EU border on island of Ireland)

The United Kingdom should continue to comply with the Union trade policy. It should also in particular ensure that its customs authorities continue to act in accordance with the mission of EU customs authorities including by collecting Common Customs Tariff duties and by performing all checks required under Union law at the border vis-à-vis other third countries. 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 final sentence added by the Council. This paragraph ensures no change in the application of the single market or the customs union to the UK during the transitional period.

This limits the UK’s power to enter into treaties and subjects the UK to more constraints than it would have as a Member State.

The UK will not be free to negotiate and sign treaties within the transitional period, even if those treaties only come into force afterward – we will only be able to begin to negotiate treaties AFTER the transition period.

How will this allow the UK to sign a trade deal with the EU for post-transition as David Davis claims the transition is necessary to facilitate?

One has to ask how under the terms of Clause 15 the UK will be able to respond to Clause 14 where the UK (as a non-EU member) would have to seek recognition by other non-EU counties for the UK being party to agreements they have concluded with the EU.

One struggles to see how we can enable a continuation of any agreements the EU has concluded with the rest of the world as per Clause 14 yet still comply with Clause 15?

This revised text means they have amended Clause 14 to appear a lifeline that doesn’t actually attach to anything.

We take this contradiction to mean we are locked into the single market and customs union but if other non-Eu nations fail to recognize the UK being party to the agreements they concluded with the EU (as we’re no longer a member – merely maintaining regulatory alignment) and we are unable to pursue our own agreement with such other non-EU nation then we are on WTO with the rest of the world which defeats the point of a transition in the first place.

It would be interesting to hear the government and DexEUs response to how Britain can conclude a future “deep and special” trade deal with the EU under the transition as David Davis professes is required if Clause 15 bars us from concluding agreements…?!?

 

FISHING INDUSTRY

Clause 20 obliges the UK to “consult” on fishing opportunities in full respect of the Acquis – i.e. obey the entire CFP!

20. Specific consultations should also be foreseen with regard to for the (interesting change/use of language..?)  fixing of fishing opportunities during the transition period, in full respect of the Union acquis.

Therefore, the UK delegation would possible be allowed to sit in the room yet the UK will still be bound by the ENTIRE ACQUIS and therefore the entire CFP – Equal Access, Relative Stability Shares and Quota system.

A continuation of the quota system where fishermen have to discard in order to find the species their quota allows them to keep conjoined with a fully enforced discard ban will finish the UK fleet.

Under the discard ban rather than address the cause of the discard problem, that a quota system does not work in mixed fisheries, the symptom of discards is banned. Under the discard ban a vessel must stop fishing when it exhausts its smallest quota allocation – these “choke species” will bankrupt 60% of the UK fleet as detailed by the governments own figures through Seafish.

This would destroy our catching capacity and allowing the EU to claim the “surplus” of our resources we would no longer be able to catch under terms of UNCLOS Article 62.2 due to such a culling of our fleet.

Signing up to a transition on will see the ruination of what is left of the UK fishing industry when Brexit should be its salvation. Another 2 years of the CFP and a continuation of the quota system will see our fishing industry become yet another British industry consigned to museum and memory.

CONCLUSION

Under the auspices of this proposed “deal” (more a dictation) the UK will be on WTO with the rest of the world, unable to conclude deals with the rest of the world until after the transition and will be locked into maintaining regulatory alignment whilst obeying the entire Acquis (with continued freedom of movement) and trapped in the CFP where our fishing industry will be culled to make way for the EU fleet. All whilst being subject to the ECJ and ruled by the Commission and Council as some sort of vassal state.

It is nearly unbelievable that the political establishment could contemplate locking the 5th most powerful nation in the world into such a subservient position especially against the expressed wish of the British people to leave the EU in its entirety as voted for in the biggest vote in British history.