Ireland’s bluff called – a letter from our Chairman

This letter was sent by our Chairman, Edward Spalton, to the Scottish Daily Record in response to an article which appeared in the paper on 27th November.

Sir,

( I was visiting, so chanced to read your article “Dublin Down” p4, Monday 27 November).

For an EU document, Article 50 of the Treaty on European Union is unusually short and easy to understand.

It is quite clear that the arrangements for a country to leave the EU are to be agreed by the European Council under the Qualified Majority procedure. The Council’s decision is then subject to approval by the EU parliament.

Neither the Irish government nor any single member state has a power of veto. I am no longer surprised at the ignorance of our politicians which allows the threat of a veto by the Irish Prime Minister to go unchallenged.  But I live in hopes of better informed newspaper correspondents!

Unwillingness to consult original EU documents is widespread in high places. At a recent private meeting of top business leaders in London, nobody put up their hand when asked if they had even skim-read an EU Free Trade Agreement. Former civil servants who were present said this was true of ministers they had served.

Of course, most such documents  are long and crashingly boring but this is not true of Article 50.

Yours faithfully

Edward Spalton

Half way there, but have we even started?

Last week marked the half way point between 23rd June 2016 – that euphoric day when we voted to leave the EU – and the actual day on which we will actually leave:- March 29th 2019.

On Friday, Mrs May confirmed that she plans to set the date for our departure from the EU into law. There will be no slippage and no turning back. This comes against a background of growing concern that Brexit could be stopped.  Today, Lord Kerr, a former UK ambassador to the EU, insisted that the Article 50 process could be stopped or reversed. No way, replied Mrs May. Her proposed law will make it irreversible.

This is good news for those of us who fought so hard to secure that historic victory in June last year. I have dealt with more than my fair share of correspondence recently from people concerned that the government is going to back track. My views have not changed since writing this article that Mrs May and the Tories, whatever side they supported during the referendum campaign, have no choice but to deliver Brexit because failure to do so would provoke the worst crisis in the party since the repeal of the Corn Laws in 1846.  Backtracking would be suicidal. Thankfully, a lust for power is deeply entrenched into the Conservatives’ psyche and given their shock at last June’s General Election result, they know that delivering a good Brexit is essential if they are to avoid  electoral meltdown in 2022.

Probe a bit deeper, however, and the picture is not quite so rosy.  In spite of the Brexit vote last year, as  Veterans for Britain has been keen to point out, the Government has taken us deeper into the EU’s military integration process, with there being considerable support to signing us up to PESCO, the Permanent Structured Cooperation of the EU’s external action force – set up in reality to undermine and replace NATO. Brexit can only mean Brexit if we are completely detached militarily and we can but hope that even at this 11th hour, Gavin Williamson, the new defence secretary who has little experience of military matters, will listen to those members of our armed forces who know what they are talking about and step back from this process.

Sadly, of our daily newspapers, only the Express  has so far been willing to cover this disturbing development. However, to repeat, even if Williamson’s predecessor Michael Fallon was able to get away with betraying the UK’s armed forces without being subject to too much scrutiny, it will be out of the bag by 2022 and the Tories will reap the whirlwind electorally.

Equally disturbing is this statement from the Prime Minister’s office which was passed to one of our supporters. Note the section he has highlighted in yellow:-  It also means that the existing body of EU law will become British law. So this provides certainty and clarity for all businesses and families across the country from the very moment we leave the EU.”

This is true when it comes to legislation which would only be applied internally. For instance,  the rules governing bathing water have been devised by the EU. It is no great problem for us to continue to use them over the Brexit period. They work satisfactorily so even if they could be improved, there is no urgency until we have settled down as a sovereign, independent country.

It is a different matter, however, when it comes to legislation which involves the relationship of an independent UK with the rest of the EU. We have previously highlighted the fallacy of this approach with regards fisheries, but it also applies to the general question of trade. the PM appears to be repeating the mistake that because our regulations will be aligned with those of the EU up to Brexit day, some sort of seamless trade arrangement should not be a problem,

The transitional arrangement which she seeks is essentially based on this misunderstanding – we can be essentially honorary EU members for two years while a bespoke long-term deal is sorted out. We would obey all the rules and pay into the EU’s coffers without any representation. Such a deal would be unacceptable to many Tory backbenchers, not to mention the wider Brexit-supporting community. Thankfully, although the penny seems not to have dropped in Westminster, the EU has said it is a non-runner.

The European Parliament  set out its position, where, among other things,  it “reaffirms that membership of the internal market and the customs union entails acceptance of the four freedoms, the jurisdiction of the Court of Justice of the European Union, general budgetary contributions and adherence to the European Union’s common commercial policy”  – in other words, you’re either in or you’re out. To repeat, it’s not about regulatory convergence but the legal relationship of a future EU-UK relationship. We will no longer be subject to the EU’s treaties, Article 50 is quite clear about this. We need to seek a new legal basis and any transitional agreement would require almost as complicated a legal ratification process than a long-term bespoke relationship.

The EU’s guidelines also say, “To the extent necessary and legally possible, the negotiations may also seek to determine transitional arrangements which are in the interest of the union and, as appropriate, to provide for bridges towards the foreseeable framework for the future relationship in the light of progress made. Any such transitional arrangements must be clearly defined, limited in time and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union Acquis be considered, this would require existing Union regulatory supervisory, judiciary and enforcement instruments and structures to apply.”

This affirm that the EU will allow us to go ahead with a transitional deal, but it must be on the EU’s terms and subject to the appropriate legal processes being completed in time, which looks very doubtful. In other words, to repeat, it’s a non-starter and a red herring.

So until there is a change in mindset among UK’s negotiators we will continue to go round in circles. Last Friday also saw the usual Barnier/Davis press conference following the latest round of “negotiations” and there is still no indication from the EU side that they feel ready to start trade talks as insufficient progress has been made on the three critical issues of the Irish border, the rights of EU citizens resident in the EU and the “divorce bill.” Agreement must be reached within two weeks or trade talks will not be starting any time soon. Sadly, David Davis’s response was to call for the EU to show “flexibility  and imagination.” Unfortunately, the EU’s legal structure doesn’t allow it to be flexible. Mr Davis can repeat this little phrase as much as he likes. It will not make a shred of difference.

So at this point when we have just reached the half way point to Brexit, it is sobering to think that this milestone has been reached with the two sides so far apart and so little real progress made. Not what any of us expected on that incredible morning when the result of the referendum was announced. A Brexit of sorts will almost certainly happen on 29th March 2019, but unless the government raises its game, we could find ourselves, more by default rather than design, either crashing out following a breakdown of the talks or suffering a Brexit that isn’t really Brexit in any meaningful way.

The older Milipede – partly right but partly very wrong indeed

Before the referendum, at least one well-known pro-remain politician talked of leaving the country if we voted to leave. Unfortunately, not only has there been no indication that Red Ken has kept to his word and cleared off to somewhere like North Korea, where he would probably feel far more at home, but also some equally odious politicians whom we thought we had already got rid of have re-emerged from obscurity to give us their pennyworth on the subject of our future relationship with the EU.

David Miliband (remember him?) has recently chipped in to the Brexit debate, saying that we should have a second referendum which would include the option of staying in the EU. He was critical of Theresa May for her decision to start the two-year countdown to Brexit by triggering Article 50 without knowing the outcome.

Irksome as it is to find oneself in agreement with this arch-Blairite and remoaner, unfortunately, he is correct – at least on this point. The government does not seem to know what it wants. Yes, in the long term, it wants a deal with the EU which will give us considerable access to the single market without being subject to the “four freedoms”  – in other words, a bespoke trade deal like CETA. But utterances from HM Government have been very heavy on  the “deep and special” relationship but very light on detail. Furthermore, how are we to get there? We are hearing talk of a transitional deal or “deferred withdrawal”, as David Davis calls it, but while it is no pleasure either to be agreeing with someone like the former Chancellor Alastair Darling, he is right in saying, “you can only transition to a destination.”

Such outlines as have been released about the proposed transitional deal are distinctly unsatisfactory. The “deferred withdrawal” would see the UK spending a further two years after March 2019 as an honorary member of the EU with no voting powers. We would continue to apply all the EU acquis and to pay into the EU budget, but would be totally passive, with no input into the EU’s processes. This would be not only a betrayal of Brexit but “a legal minefield” according to Chris Bryant, an EU expert at lawyers Brewin Leighton Paisner. Even this arrangement simply cannot be agreed, signed and ratified in time for Brexit Day.

Mr Bryant then went on to say that the government doesn’t seem to have got to grips with the need to pin down even a transitional deal legally. “Vague talk is not going to cut the mustard.” This is the problem. The government is convinced that the EU will agree to some sort of transitional deal, but when David Davis was asked about what legal authority the EU had for this, he was very evasive – and with good reason.

This exchange with the SNP MP Joanna Cherry in the Sel;ect Committee on Exiting the European Union on 25th October is particularly enlightening:-

Q67            Joanna Cherry: Can I go back to the transitional period or the implementation period?  What is your understanding of the legal basis for a transitional deal or an implementation period?

Mr Davis: The presumption we have been working on is that it comes under the Article 50 proposal.  It was raised with us by the Commission.  The European Parliament sees it in those terms.  I am assuming the Commission legal service does.  But in many ways it is a question almost for the Commission rather than me.

Q68            Joanna Cherry: Do you have any legal advice of your own as to the basis of a transitional deal or implementation period?

Mr Davis: I am not going to share the legal advice for the reason I gave earlier: that is the convention.  But our belief is that it fits under Article 50.

Q69            Joanna Cherry: Legal advice exists, and it is your belief that it is under Article 50.

Mr Davis: I am not going to be drawn any further on that.  I said I believe it is going to be under Article 50.

Q70            Joanna Cherry: Article 50 does not actually say anything about transitional deals or implementation periods.

Mr Davis: Article 50 does not say very much about anything, if you read it.  It is the blandest and unhelpful phrase you are ever likely to come across, but there we are: that is that.

Q71            Joanna Cherry: What it does make clear is that, during any period of deferred withdrawal, the treaties would continue to apply, so if we went into a period of deferred withdrawal under Article 50 we would still be in the single market; we would still be in the customs union; and we would still be under the jurisdiction of the European Court of Justice.  That is correct, isn’t it?

Mr Davis: My response to that is the same as my response to Mr Bone: we are not looking for deferred withdrawal; we are looking for an implementation period.

Q72            Joanna Cherry: But if it is the case that, as a matter of law, all you could have under Article 50 was a deferred withdrawal, we would not be leaving on 29 March 2019, would we?

Mr Davis: That is not what we have been negotiating for.  The phrase “deferred withdrawal” has never been used to me by the Commission.  The phrase they use is “transition period”.  Our term of art is “implementation period”.

Even the most unsatisfactory idea of being a passive honorary EU member requires the EU to agree and such an agreement would require it to go through almost as complex a legal process as a long-term deal.  There is no indication that Mr Davis has appreciated this important point. His answers suggest that he cannot explain the legal basis under which the “transitional deal”,” implementation period”, call it what you will, can be agreed. Once we leave the EU on 29th March 2019, the treaties no longer apply to the UK, including the Lisbon Treaty, with its Article 50, so it will have to be something else. But what?

Furthermore, what guarantee is being offered that the transitional arrangement, if agreed, really will only last for two years?  David Davis was not convincing in his reply here too when questioned by Sammy Wilson MP over this. Ironically, he then went on to say that “no deal” still remains an option.

But  is it really? The “no deal” option  assumes that “with one bound, we will be free.”  In other words, there may be a few little glitches but we would still survive – and indeed prosper  – if we  cut our ties at a stroke in the event of the talks getting bogged down. There are many reasons to be highly sceptical that things will run anything like so smoothly.

In summary, the government seems to believe there are only two positions in which the UK could  find itself in March 2019 and both would be disastrous.The first would see us essentially still in the EU in all but name, the second is cloud cuckoo land.  – or rather, a massive headache for many businesses which could well lead to a very severe recession.

Where the Government is going wrong in its thinking on both the proposed long and short term relationships with the EU is its assumption that if any nation has aligned its own regulation with that of the EU, the EU will happily treat it as an honorary member of the club. This is to miss the whole point of the EU project – it is not a trading bloc but a political construct. The sheer complexity of Brexit has already shown to us just how much independence we have already surrendered thanks to Edward Heath’s manic determination to shackle us to this contruct.

So  Miliband is right in saying that the government should have worked out its exit strategy before triggering Article 50. Even all this time later, less than a week before the mid-point between last year’s referendum and Brexit day, the government still seems caught between a rock and a hard place  when it comes to devising a strategy which would enable us to leave the EU satisfactorily.

His other comments, however, are totally and completely wrong. “”Those of us who are outside the country take absolutely no pleasure in the low ebb to which Britain has sunk. Brits abroad look at the fact other countries see us in retreat, having lost our way” he said. For all the muddle of the negotiations at the moment, this is not a country in retreat nor one which has lost its way. Rather, we are groping our way slowly and indeed very awkwardly towards something better. It may be a long tunnel, but one day, there will be some light at the end. To reiterate a point made above – and indeed, on many other occasions on this website – the Brexit negotiations have laid bare just how many areas of public policy have been surrendered by our government as a result of 43 years’ membership of the EU. It has been like an octopus, wrapping its tentacles around our political institutions and slowly squeezing the life out of them. We want to escape before it finally throttles us. If we have sunk to a low ebb, it’s because of our membership of the EU, not because we voted to leave.

The Brexit vote was a vote to re-join normality – a reflection of our desire to be a successful nation state once again and a vote of confidence in ourselves that we can do it. I doubt if any of us involved in the campaign to free the UK from the EU have had the slightest doubt that it was the right thing to do.  Successful nation states are flourishing in Asia, North and South America and Australasia. Nearer to home, Norway, Iceland and Switzerland are happy outside the EU. Indeed, in Switzerland, one minister recently said that in his country only “a few lunatics” want to join the EU.  It will take some time to readjust and there is no denying that the government is in a mess over its Brexit strategy at the moment, but even if Miliband and his like cannot hide their contempt for the UK electorate’s decision to regain its freedom, we did the right thing and we will be vindicated  – eventually.

Photo by Hanna Irßlinger Fotografie

What to tell your grandchildren

The depths to which the remainiacs are descending is simply staggering. A recent article in The Times to which one of our supporters drew our attention shines the spotlight on a murky group fronted by, among others, the Labour peer Lord Adonis. It will be targeting young people, urging them to tell their grandparents that if they care about their grandchildren, they should reconsider their support for leaving the EU. In other words, they are trying to ferment inter-generational conflict to further their miserable hopes of stopping Brexit.

This “Ring your granny” strategy has a very dubious past. It was apparently used  to build support for same-sex marriage in Ireland.  One of the other promoters is a crackpot by the name of Madeleina Kay, who managed to get herself thrown out of  a Brussels press conference for wearing a superwoman costume! One report claims that her blog features pictures of her posing with pro-EU pond life such as Bob Geldof, Eddie Izzard, and Nick Clegg. Enough said.

Let us be clear:- there are people who either supported Brexit or else who have accepted the result of last year’s referendum who are genuinely concerned about the lack of progress with the negotiations so far. They are worried that a no-deal scenario would be far more damaging than we are being led to believe. The leading figures of this new campaign, however, have a totally different viewpoint. They want us to stay in the EU. They were convinced that Article 50 would never be triggered; when it was, they hoped that  the government would get cold feet and back out. Now reality has dawned that we really are leaving, nothing, it seems, will dissuade them from using every means, fair or foul, to frustrate the democratic result of last year’s referendum.

So, Grannies and Grandpas of this world, what should you do if you receive a phone call from a worried teenage grandchild? Here are a few suggestions:-

  1. Tell them that they should be grateful that the boil has finally been lanced and that over 40 years of our unhappy relationship with Brussels will finally come to an end, meaning that this problem won’t be bequeathed to their generation to sort out.
  2. Tell them that they will be the main beneficiaries. Yes, it may be tough for a year to two before things settle down, but within a generation, free to rebalance our trade with the growing economies of Asia and the Commonwealth rather than the sclerotic EU and free to set our own taxes and tariffs,  we will become more prosperous than if we had stayed in.
  3. Tell them that you can remember the days when we were an independent sovereign country and not only did we manage very well, it was actually better to be ruled by democratically-elected people from our own country than by unelected bureaucrats  in Brussels. Suggest that they stop being myopic and look beyond Europe to Australasia, America and Asia where successful nation states are the norm – and are flourishing. The Brexit vote, in other words, was a vote to re-join normality.
  4. Tell them of our deep love from freedom; how Magna Carta and our Common Law legal system have given us safeguards which are absent even now on much of the continent where Napoleonic inquisitorial legal systems reign supreme. Point out that we would have lost all this before they reached middle age if we had remained in the EU.
  5. Tell them that they will still be able to travel and study abroad. No one is suggesting putting up some sort of drawbridge nor is there any reason why we can’t stay part of the Erasmus scheme.
  6. Tell them that by being able to restrict immigration, it will make life a bit easier for them (albeit only slightly) by removing a little pressure from the housing market and thus helping them to buy their own home.
  7. Tell them to ignore the miserable self-flagellants who are always talking our country down. Remind them of the many events and people from our long history of which we can be proud. Maybe some of them have only been taught tosh in history classes, so a bit of education may be needed here, but what of our great military heroes like Drake, Blake, Nelson and Wellington? Inventors like James Watt, Isambard Kingdom Brunel, John Logie Baird and Tim Berners-Lee? Tell them of Wilberforce and the campaign to eradicate slavery; of Churchill and how we stood alone against Hitler in 1940; of David Livingstone, the great missionary and explorer. The list is endless.
  8. Finally, tell them that you are not going to be around for ever and that one day their generation will have to take over. Warn them that if they continue swallowing all this nonsense from remainiacs, they won’t be fit to run a whelk stall, let alone the country!

New research paper by Futurus – The negotiations will fail

The title of this latest publication from Futurus may appear provocative but the prospect of concluding a jointly agreed leaving process and a future relationship so it can come into effect, possibly with a transition period, by March 2019 seems very remote.

There have been faults on both sides and the UK government’s failure to set out what exactly it wants the outcome to be has been a particular problem.

The UK government need not have agreed to the EU’s proposed sequence of events – the settlement of the Irish border issue and the exit fee – before discussing trading arrangements. Under Article 50, it need not have done so.

A mutually-agreed pause in the negotiations looks likely or else failure looks highly probable.

The full paper can be downloaded here. PLEASE NOTE: The paper has been revised since this article  was first published.

Clash of cultures – the root of our Brexit difficulties

Can the conflicting opinions on the EU’s intentions in the Brexit negotiations be reconciled? In my hearing, a staunch Brexit supporter recently referred to Michel Barnier as a “reasonable man” whereas  I have read numerous comments from people convinced that the EU wants to punish us and will deliberately be as unreasonable as possible. Who is correct?

It cannot be denied that Brits and Continentals do seem to have a different mindset when it comes to negotiations. Our attention was recently drawn to an interesting article on this subject on the Conservative Home website by James Arnell, a lawyer with some experience of negotiating with people from European countries. He claimed that such people begin with unreasonable demands and only at the last minute does a deal emerge.

Fair enough, but this does not get to the heart of the conundrum. The fundamental problem is that many of us don’t understand the difference in culture between our country and the majority of the other member states.

It goes back centuries, possibly longer. Essentially, our Common Law legal system bequeathed to us a love of liberty and flexibility. We don’t like everything to be rigidly codified and prefer laws to which we can adhere to in spirit rather than obeying to the letter. Such a mindset is as inevitable outworking of Common Law with its insistence on equality and inalienable rights.

Across the water, the two most influential figures in the development of law were the Byzantine emperor Justinian (d.565) and Napoleon. Their legal systems, which form the basis of  most of the law codes in Europe, were very top-down. Freedoms were conditional and the concept of everyone being equal before the law was unknown.

The EU’s approach to lawmaking is very much in that tradition and like all such systems, tends to be very exact and very bureaucratic. It will legislate in great detail in areas where an independent UK would not have been so precise or perhaps, not bothered at all. We may have laughed at the cuddly toy sheep depicted in Regulation 1462/2006, but it graphically illustrates the difference in approach which has been one of the biggest problems facing our politicians and civil servants since 1973 and which lies at the root of the lack of progress with the Brexit talks.

Very few UK politicians have appreciated the difference in mindset between ourselves and the rest of the EU – even those who have supported our membership. On one occasion, Sir John Major was taken to one side by Helmut Kohl, the former German Chancellor, and told to go home and read the treaties as he clearly had never done so.

This mindset manifests itself in various other ways, some mildly amusing, others frustrating. The Civil Service did not always find it easy to convert EU directives into UK law and often ended up “gold-plating”  – in other words, interpreting them in an excessively strict manner. A German motorist was once apprehended by the police for driving his Porsche at well over 100mph on a UK motorway. His excuse was that the 70mph limit did not seem to apply as so many other cars were going faster. In other words, he could not get his head round the concept of obeying the spirit but not the letter of the law – a guideline rather than something always enforced to the letter.

The different legal status of a UK policeman compared with a Continental Gendarme is another aspect of the same clash of mindsets. As Christopher Gill, one of the former “Maastricht Rebel” Conservative MPs explains,

“The tradition of British policing has been to protect individuals and their property from criminal activity and to apprehend those who transgress whereas on the continent police act almost like an army of occupation, responsible for public order enforcement, crowd control and generally buttressing the authority of the civil state as opposed to defending the freedom of the individual citizen”.

On a personal note, I can recall during my time working in Brussels how often colleagues used to moan about Belgian bureaucracy. The amount of form-filling required to register for residence or to let the authorities know that you worked for the EU and were thus covered by different tax arrangements was quite staggering. Yet it didn’t seem to bother the Belgians that their taxes were being used to pay the salaries of some public sector workers whose sole occupation seemed to be to stamp forms!

When we joined the EU, however, whether our politicians understood it or not – and most of them almost certainly didn’t – we agreed to play by their rules and in leaving the EU, it is exactly the same. Under Article 50, we have two options – to come to an agreement or leave without one. As M. Barnier has pointed out, it was our decision to leave. If, therefore, we want to leave by the EU’s approved route, our exit negotiations have to be conducted according to EU rules which limit the scope for flexibility. The EU in other words will not be flexible because it CANNOT be flexible in some areas where our ministers would like a bit of “give and take”.

For instance, Liam Fox’s claim that an EU-UK trade deal would be “the easiest in history” because we are beginning with zero tariffs and maximum regulatory convergence fails to take into account the simple fact that under EU rules, we become a “third country” on independence and the treaties cease to apply. Whatever the levels of convergence, in March 2019 our entire current relationship with the EU will be no more and any new trading arrangements will need to be put together on a totally different basis.  The EU can’t bend the rules for us, whether it wants to or not.

This clash of cultures shows why it was right to vote to leave last year. It also explains why we are likely to prosper once we have left, even though when it comes to international trade, we will still be subject to any regulation originating with global bodies. David Davis’ “sunlit uplands” are therefore not a total fantasy, but we’ve got to get there first! We will only do so if our negotiating team fully get to grips with the nature of the organisation we are trying to leave. It may be boring, tedious stuff, but if we are to leave smoothly, there is an urgent need for Civil Servants and politicians alike to heed the advice which John Major never took – Go and read the treaties!

 

 

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