Why the Brexit trade team has hired a New Zealander as lead negotiator

A week in which five somewhat underwhelming position papers were published by the Department for Exiting the European Union was rounded off by a piece of somewhat better news.

Next week, Crawford Falconer, a New Zealander, will take up his position as chief trade negotiation adviser at the Department for International Trade.

Mr Falconer brings with him some valuable expertise which our EU membership has more or less rendered extinct in the UK – 25 years of trade experience. He has represented New Zealand at the World Trade Organization (WTO) and held various posts in foreign and trade affairs in his home country.

As far back as 1973, we surrendered our right to negotiate our own trade deals and thus no longer had need of people with the necessary skills. Given that the freedom to strike our own trade deals was one of the most frequently-mentioned arguments in favour of Brexit, it is therefore encouraging that Liam Fox’s department has made this appointment.

For one thing, it shows that the UK Government is serious about developing an independent trade policy. More importantly, however, it shows  that a recognition has dawned at least in one Government department that trade deals are complex, requiring specialist skills. This is in contrast to some announcements – indeed, to some of the Position papers – which give the impression that obtaining a smooth Brexit will be a piece of cake.

It won’t be. For over 44 years, our country has been progressively denuded of many attributes if a fully-functioning sovereign nation. Many of us were profoundly unhappy about this and hence the energy and vigour of the Brexit campaign in last year’s referendum. We wanted our country back  – to take control once more and to end our subservience to foreign institutions.

The ramifications of that vote are beginning to reverberate through both Westminster and Whitehall. The buck will stop here – not in Brussels or Strasbourg! The EU can no longer be the scapegoat when something goes wrong.

Reclaiming our sovereignty requires not only a new mindset but a sharp learning curve for a new generation of civil servants. They are going to have to do things which have been sub-contracted out to Brussels for two generations. Not one UK Civil Servant still in employment has had any experience of negotiating a free trade deal on behalf of our country. Inevitably, therefore, expertise will have to be brought in from elsewhere to tide us over and the obvious places to look are those countries like New Zealand which share our Common Law legal system, our language and our outward-looking approach to trade. We can be grateful not only that there is an Anglophone world out there, but that our Commonwealth friends are prepared to renew and strengthen their ties with us after having been cast adrift so shamefully in 1973.

The more announcements we therefore hear of appointments like Mr Falconer, the more confident we can be that or government is really getting to grips with what it will mean to be a sovereign nation once more.

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New government position paper – Enforcement and dispute resolution

This latest Government position paper begins with a phrase we have heard time after time “new deep and special relationship.” This is a most unfortunate term, although at least it makes the point that we don’t want to make enemies of EU-27. Our relationship will certainly be “new” as we will no longer be a member state but “deep and special”? We voted for a looser relationship to enable us to be closer to the rest of the world. It is hard to imagine that in a decade or so, if Brexit is managed successfully we will be any closer to the EU than to our friends in the Commonwealth, for instance. The EU, in other words, will not be particularly special even if we naturally want to work closely with it.

The paper attracted much comment over the future role of the European Court of Justice. Upon its publication, the Government was accused of back-tracking over its commitment to end the jurisdiction of the European Court of Justice upon  Brexit. Even the Prime Minister felt obliged to make a statement confirming that this was still the Government’s intention.

The paper says little about one contentious issue – the desire of the EU that its citizens resident in the UK will remain subject to EU law after Brexit. This is a most unreasonable request and flies in the face of our Common Law principle – that the law is the law for everyone from the monarch downwards. Historically, the scope of our Common Law has applied to non-nationals either resident in or visiting the country. We do not hear of the governments of, for example, India, Saudi Arabia, Switzerland or the USA wanting an arrangement whereby their citizens remain subject to the laws of their home country while they reside in the UK, nor would these countries grant UK citizens living abroad the right to be governed by UK law. The EU’s claim to “extra-territoriality” is exactly the same as that which the nineteenth century Imperial powers imposed on China. Under their terms, Citizens of the European states could not be tried by Chinese courts but only in the courts established by the European powers in China. Given that the UK’s legal systems are better than those found in much  of Continental Europe, the EU’s demand should be resisted


As an aside, if the UK rebuffs the EU on the grounds that the same legal system applies to everyone resident in the country,* it does pose the question about the legitimacy of the Sharia courts operating in the UK, which do not have any formal legal status but in reality, make decisions which have a profound impact on the lives of women and children in particular.

The paper leaves open the nature of cooperation between the legal authorities in the UK and the EU in the event of international disputes. It quotes examples of international legal bodies already in existence, including the EFTA court, interestingly enough. The UK government has thus far shown no inclination that it wants to re-join EFTA, but such a move could be helpful in enabling us to take advantage of an existing body which works closely with the ECJ while remaining independent of it.

Like the previous papers, detail is rather limited and although these papers have been produced in theory to guide the next round of Brexit talks which are due to start next week, this topic isn’t going to be discussed any time soon. We need not have agreed with the EU’s demand for progress on the rights of EU citizens living within the EU, the exit fee and the Irish border issues before moving onto discussing the wider Brexit settlement, but David Davis did so. Consequentially, as has been pointed out elsewhere, this paper is really only for domestic consumption only.

 * Obviously, Scotland and Northern Ireland have different legal systems to England and Wales

 

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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What if we had lost?

It’s now over 10 months since the referendum. After the initial euphoria at the result, we enjoyed a brief and well-deserved break before plunging in to the next campaign – ensuring that we end up with the best Brexit deal possible. With Article 50 now triggered, however, the negotiations about to begin in earnest and memories of the referendum itself beginning to fade, it’s easy to forget how hard we had to work to achieve last June’s result.

Suppose, however, that it we had lost.

David Cameron had spelt out in no uncertain terms that this referendum, like Scotland’s vote in 2014, was a “once in a generation” decision. Admittedly, Nicola Sturgeon is straining every nerve to try to engineer a second vote on Scottish independence, but given that it was 41 years since our previous referendum on EU membership, we all knew that if our countrymen had voted to remain in the EU last June, we would have faced many more years of campaigning before a third vote would ever become even a remote possibility.

But just suppose a further vote had eventually been held in, say, 2025, what sort of state would our country – or indeed, the EU – be in by then?

We know that there was a great deal of unease on the Continent following the Conservatives’ 2015 General Election victory, which meant Cameron was going to have to make good his promise to hold the referendum. Laurent Fabius, France’s Foreign Minister, called his pledge “dangerous”. Until last June, Cameron had been described as a “lucky” Prime Minister, winning the 2015 General Election when many pollsters were predicting a hung parliament and securing the results he wanted in both the AV and Scottish independence referendums. Perhaps his track record helped calm nerves in Brussels and Berlin. After all, if remain had won, the implications for the EU would have been enormous.

A vote by the most consistently eurosceptic member state to remain in the EU would have been a green light for a further push towards federalism. Such a move may have initially been focussed on the Eurozone, especially given the victory of the enthusiastic federalist Emmanuel Macron in last Sunday’s French Presidential Election, but we would have inevitably found ourselves swept along in the federalist slipstream. Furthermore, even if voters in other EU member states voted the “wrong” way in any subsequent plebiscites, the EU could have pressed on confident that opposition could be muzzled. If even the truculent UK ultimately had decided to submit to the yoke of Brussels, the EU would have felt emboldened in the pursuit of its objective of creating a superstate. To put it another way, all 28 member states would have themselves been locked into an EU where the Jean-Claude Juncker mindset would have reigned unchallenged. “’If it’s a Yes we will say “on we go”, and if it’s a No we will say “we continue””, he famously said.

Now, however, there will be much nail-biting whenever a new treaty is put to a popular vote. The Brexit vote has shown that electorates are happy to defy a powerful combination of their own political leaders, businessmen and senior figures from both Europe and the wider world. The results of the Dutch general and French presidential elections may have been greeted with huge sighs of relief in Brussels, but it is worth remembering that in the first round of the French elections, 46% of voters opted for an EU-critical candidate. Macron’s victory does not imply a renewed love for the EU in France.

A remain vote would have bolstered the EU’s credibility in the wider world. It is doubtful whether it would have altered the course of events in Turkey, where accession to the EU now looks highly improbable following President Erdogan’s revisions to his country’s Constitution. It would, however, have strengthened the pro-European forces in Norway and Iceland. Maybe even the Swiss would have felt that sooner or later, they would have to join up. Instead, our vote to leave essentially buries the prospect of membership for Western Europe’s non-EU members and also makes the EU a harder sell in the Balkans and the former Soviet republics.

After all, although many of us are aware that one country, Greenland, had earlier left the EEC (as it then was), how many of us can actually remember it happening? It was a pretty minor piece of news at the time whereas the Brexit vote was splashed over front pages across the world, complete with pictures of either Donald Tusk or Angela Merkel looking distinctly gloomy.

The EU was never going to be the same after our referendum, however we voted. Its credibility would either have been boosted or dented.

As for how our country would have been affected by a remain vote, as Rupert Matthews pointed out, defeated leavers would have accepted the result with far more grace than the appalling behaviour we have witnessed from remainiacs like Gina Miller, Richard Branson and Tony Blair. We would have vowed to continue the fight but would not have accused voters in the opposite camp of being stupid. Nor would we have been cry-babies saying that the people didn’t know what they were voting for.

However, within a matter of only a few years, we would have seen much of our remaining distinctiveness gradually eroded. How long would we have been able to remain outside the single currency? How long before our armed services would have been absorbed into an EU army? What of the safeguards of our common law-based criminal justice system, so superior to the Napoleonic inquisitorial system of continental Europe, which the EU eventually would have replaced with a single criminal justice code? Would metrication have been pushed with renewed vigour?

Thankfully, instead of this nightmare scenario, we voted to leave and in so doing, besides the eventual benefits to our own country, we may well have put a big spanner in the works to the whole federalist project, for the good of the whole continent. As William Pitt the younger famously said 200 years ago, “England has saved herself by her exertions and will, as I trust, save Europe by her example.”