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!

 

 

Photo by archer10 (Dennis) 100M Views

What is really going on? Stepping outside the media bubble.

If you are Brexit supporter fed up with all the muddle emanating from the media, a press release from the European Commission is hardly the obvious place to turn for clarity.

A recent communication, entitled “State of play of Article 50 negotiations with the United Kingdom” nonetheless does help to clear some of the fog surrounding the current state of play with Brexit. In particular,  it offers some welcome clarification over the debate as to whether Article 50 is reversible. “It was the decision of the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Article 50 does not provide for the unilateral withdrawal of the notification.”

In other words, pulling back from Article 50 would require the agreement of both the EU and the UK government. This isn’t on the cards, whatever Vince Cable may be saying. It also provides clarification about life after Brexit. The UK will become a “third country” on 29th March 2019 and if there is no agreement between the UK and the EU by then, we will be reliant on WTO rules for trade.

This looks unlikely. It is almost certain that there will be some form of agreement, but whether it will be sufficiently comprehensive to cover all areas of trade, including non-tariff barriers, remains to be seen. Essentially, the options for both us and the EU are for us to crash out of the EU or to come up with an agreement which has been signed off by the UK government, the European Council and the European Parliament. A qualified majority is required in the Council and no mention is made of the need for parliaments in the member  states to endorse the agreement. Significantly, the institution which produced this document, the European Commission, will not be involved in the sign-off at all.

A new mindset in the Civil Service?

Another interesting article to be brought to our attention is this piece from the Civil Service blog. It mentions the Department for Exiting the EU, or DExEU, a new department created specifically to handle Brexit. So far, 450 staff have been taken on and there are plans to recruit a further 400 during the course of this financial year.  Another new Department, the Department for International Trade, has grown to 3,200 staff. The blog is very complimentary about the quality of work achieved so far by DExEU. “Within days of its establishment – from a standing start – DExEU was delivering policy analysis and advice of the highest quality to the new ministerial team.” One has to say that if the policy analysis and advice was of such a high quality, it is a pity that, judging by some of the ministerial announcements in recent months,  it seems to have been ignored!

The blog’s author, Sir Jeremy Heywood, acknowledges something which we believe to be self-evident but which again, does not seem to be reflected in some of the statements we have heard from the Government:- “This is probably the biggest and most complex challenge the Civil Service has faced in our peacetime history.” On 29th March 2019, for the first time in over 46 years, the buck will stop with Westminster and Whitehall. There will be no Brussels to blame if things go wrong. Our elected representatives and the Civil Service will be fully responsible for running the country and will no longer spend some – or in some cases, most – of their time enacting legislation agreed by the EU. This truly requires a different mindset and we can but hope  that the very upbeat tone of this blog is soon reflected in the actions of government departments, including preparing businesses for the changes which lie ahead.

The Great Repeal Bill

Returning to the Commission’s article, it points out that on 29th March 2019, the EU treaties will cease to apply to the UK. All legislation put onto our statute books which originates with the EU derives its authority from the treaties, so would be rendered null and void on Brexit day.

Due to the impossibility of replacing 46 years of EU laws with domestic legislation in such a short timescale, EU legislation needs to be “repatriated” – in other words, retained on the statute books but with the authority no longer derived from the EU treaties but from the UK Parliament. The European Union (Withdrawal) Bill, as the Great Repeal Bill is more correctly known, has now been published. It is a full 66 pages long and covers both the European Communities Act of 1972, which will be repealed on Brexit day, and the incorporation of EU law into UK law. The EU’s Charter of Fundamental Rights is not to be brought across, although no mention is made of exempting fisheries legislation, which will be covered by another bill – at least, that was the plan in the Queen’s speech.

It affirms our independence from the European courts and also provides some general guidelines for changes that will need to be made to the appropriate items of legislation to reflect the fact that their authority is no longer derived from the EU. It also confers powers on Ministers to use secondary legislation to amend provisions as they are transposed, although the amount of re-writing which will actually be required goes way beyond the guidelines in this Bill. Completing the necessary changes by March 2019 is going to be a major challenge whatever,

Our proposed withdrawal from the Euratom treaty, which provoked a storm in a teacup, is confirmed under the general guidelines for changes, as is the withdrawal from the EEA agreement, which does pose the question as to the nature of any transitional arrangement for EU-UK trade.

The bill for triggering Article 50 went through Parliament without amendment. The progress of this much longer bill is not likely to be straightforward, but of one thing we can be sure:- much of the mainstream media is likely to be providing us with a very unreliable guide on its progress.

Photo by RNW.org

Legislation for the Great Repeal Bill to be introduced soon

The Brexit secretary, David Davis, has indicated that legislation for the “Great Repeal Bill” – the incorporation of laws passed by the EU onto our statute books so that they take their authority from Westminster rather than Brussels, could be introduced as early as next week.

The objective of this Bill is to enable life in the UK to run as smoothly as possible during the immediate post-Brexit period when, under the rules of Article 50, the EU treaties will cease to apply.

Obviously, it would not be appropriate for all EU legislation to remain on the EU’s statute book lock, stock and barrel. Thankfully, it appears that there is growing awareness that EU fisheries legislation must not apply once we leave. We will no doubt be made aware of other exceptions in due course. They will either need so much re-working that it is best to start from scratch or else they are totally unsuitable.

There are also plenty of other pieces UK legislation which have been put on our books such as the Landfill Directive or the Interoperability Directive, which are far from ideal, but with which we can live for a couple of years. After all, the Government will have its hand full dealing with essential issues, including the complex subject of trade, a subject about which little of substance has been revealed as far as exit strategy is concerned.

Therefore, much as many of us resent the fact that so much of our legislation during the last forty years has originated in Brussels rather than Westminster, we have little choice. Not bringing this legislation across would leave us without any standards and regulation in many crucial areas of our nation’s life, including health standards for bathing water or car exhaust emissions. Some of them are actually quite sensible. After all, even the worst of régimes occasionally come up with some good laws. Only when we have achieved our very challenging objective of leaving the iron grip of the EU will the resources be available for the re-evaluation of these regulations.

Photo by (Mick Baker)rooster

A small step – the denunciation of the 1964 Fisheries Convention at last!

Within a week of taking up his new post as Secretary of State Environment, Food and Rural Affairs, Michael Gove, has finally denounced the London 1964 Fisheries Convention. This is a small and welcome step towards Brexit, but one which should have been done at the same time as Article 50, as both require two years’ notice of termination. It means that unless we get a time extension to the Article 50 process, there will be a 3-month overlap.

The 1964 Convention was an agreement between the UK and some other European countries about fishing rights in each other’s waters. It was disadvantageous to UK fishermen and very beneficial to the French, possibly as a sop to General de Gaulle, who was not at all keen to see us join the European Community, with which we were currently in negotiations with at the time.

There are some grounds for saying it may make little difference as the Convention is vessel-specific and very few, if any, boats mentioned in the 1964 agreement are likely to be commercially active.

Of course, our membership of the EU has superseded it. Michel Barnier tweeted yesterday:-

UK denunciation of London Convention=no change: EU law/Common Fisheries Policy had superseded it. EU 27 interests=my priority for negs

This is a very telling. In one sense, Barnier is correct, as the detail of the Convention was transferred into EU regulation. On Brexit day, however, the regulation ceases to apply, and we revert to previous domestic legislation which, if it had not been denounced today, would have continued the right of access to our 6 to 12 nautical mile limit.

Note again, “EU 27 interests=my priority for negs.” Given that France gained most from the 1964 Convention, in any negotiations for a post-Brexit fishing settlement, you can expect France to demand access rights to fish in UK waters.

So while today’s move has cleared the way for UK control of our waters up to 12 nautical miles from the coast, there is still the question of control of our seas between 12 and 200 nautical miles (or the median point where the sea is less than 400 nautical miles wide). The Great Repeal Bill will repeal the European Communities 1972 Act, but at the same time will repatriate EU law into UK law – in other words, EU legislation will still be on our statute books but will take its authority from Westminster and not Brussels. This means that while Article 50 would take us out of the Common Fisheries Policy, the Great Repeal Bill, unless it excludes fisheries, would more or less take us straight back in again.

The separate Fisheries Bill will counter that, as long as it takes effect at exactly the same time as, or before, the Great Repeal Bill. If there is any overlap, this will result in huge problems of continuity and legal challenges.

As the time ticks away towards 30th March 2019, ministers need to remember the Kent Kirk case. This Danish skipper deliberately fished in UK waters to test the situation when there were uncertainties following the termination of a fisheries agreement without anything being put in its place.

Once we reach the end of the Article 50 period in March 2019, all EU treaties and regulations will cease to apply to the UK, and we revert to our own UK legislation. It is vital to sort out a fisheries policy before then and the timetable is short. Under Article 50, unless there is unanimous agreement among the 27 members to extend the two year period, we have 21 months left to achieve a withdrawal agreement. When you consider all that needs to be done in such a short space of time, it raises the question as to whether this is possible.

The EU is in the driving seat when it comes to determining the terms of withdrawal. The UK can say yes or no and even then, the Council and the European Parliament have a vote. While the EU is obliged by treaty to conclude a deal, it could make life so difficult that the UK either has to submit or say no.

However, circumstances have dealt us a strong hand as far as fisheries is concerned. If there is no fisheries agreement, no EU vessel will be able to fish in our waters. Given the French fishing Industry needs access to UK waters to survive, it will be putting a lot of pressure on the EU’s negotiators to fight hard on its behalf. It is vital that our side does not give in. Gove has thrown down the gauntlet and even today’s action has ruffled a few feathers. He will need to steel himself for a far worse reaction if he is to see this through to the bitter end and reclaim full control out to the 200 nautical mile/median point limit.

(See also this press release from Fishing for Leave)

Negotiating Independence – a letter from our Chairman

The letter below, written by our Chairman, Edward Spalton, was recently published in the Derby Telegraph.

Sir,

Like D.G. Betts (30 June), I am keen to be out of the EU and have been since 1972 when I began to discover the ulterior motives and bad faith by the Europeans and by our own government, surrounding our accession to membership.

Negotiations were nearly complete when the EEC (as it then was) suddenly introduced the Common Fisheries Policy, demanding that our waters should become a “common resource” for all member countries to share. Prime Minister Edward heath knew that there was no legal provision in the Rome Treaty for such a policy but went along with it nonetheless. He also misinformed Parliament that British fishermen’s interests would be protected. The result was ecological catastrophe for our seas and fish stocks, economic catastrophe for our fishermen and a massive financial loss to our country’s balance of payments..

This was one reason why Tony Blair wrote in his 1983 election manifesto “We”ll negotiate a withdrawal from the EEC which has drained our natural resources and destroyed jobs”. What a pity he never kept his word!

It is a complex business to right the wrongs of forty four years, so it will require negotiation which take time. Under Article 50 of the Treaty on European Union, a two year period is allowed. During that time we are still full participating members but we do not sit on both sides of the table during the withdrawal negotiations. We can hardly be buyer and seller at the same time! That is reasonable enough.

Paragraph 4 of Article 50 states “….the member of the European Council or of the Council (of Ministers) representing the withdrawing Member State shall not participate in the discussions of the Council in the decision concerning it…” That is why our representatives are excluded those meetings – but only from those meetings.

For everything else, we continue full members until (Paragraph 2) “The treaties shall cease to apply from the date of the entry into force of the withdrawal agreement or, failing that, two years after the notification, unless the European Council in agreement with the Member State concerned, unanimously decides to extend this period”.

Almost uniquely this is one EU document which is both short and clear – but the negotiations to get the right deal will be very complex indeed.

Yours faithfully,

 

Edward Spalton